형가중적 형사특별법에 대한 법이론적 문제점

최호진 ( Ho Jin Choi ) 단국대학교 법학연구소 2006 법학논총 Vol.30 No.1

Korea has a great number of so-called Special criminal acts in addition to the Criminal Code. Among them, the Law on Punishment of Violent Acts and The Act on Aggravating Certain Crimes is one of the representative aggravation special criminal acts. But special criminal acts has a many problem in criminal jurisprudence. The Acts are legislated only considering the convenience of application. And The Acts overlapped with the provisions of the Criminal Law Act. This increase of the Special Criminal Acts is consequent on the confusion of application, decrease of norm power of the Criminal Law Act. The Problem of the Special criminal acts are overlapped with the provisions of the Criminal Law Act, ahabitual offender impose a severely heavy punishment, Overpenalization, Legislating Process. The conclusion of this article is that inflicting aggravated punishment to habitual criminals is not suitable from the viewpoint of Schuldprizip. and that a few articles of aggravation special criminal acts weave Criminal Law together or simply abolishing the latter.

부동산실명법위반과 형법의 적용

황태윤 ( Hwang Tae-yoon ) 홍익대학교 법학연구소 2021 홍익법학 Vol.22 No.2

Act on the Registration of Real Estate Under Actual Titleholder’s Name and the Criminal Act have different roles. Act on the Registration of Real Estate Under Actual Titleholder’s Name pursues to achieve the administrative purpose of restoring registered names to the trustee. The fact that the Real Name Real Estate Act stipulates a penalty surcharge and compulsory payment for title trust acts is for the direct purpose of restoring the title to the actual right holder, and that individual title trust cases without illegal purposes such as tax evasion should not be protected under criminal law. Article 355 (1) of the Criminal Act only refers to the property of others, and does not separate movable property, real estate, automobiles, construction machinery, ships, and aircraft. In the case of automobiles, construction machinery, ships, and aircraft, whether the crime of embezzlement has been established is judged based on the status of de facto control rather than registration. In the case of real estate due to the Real Name Real Estate Act, the main argument of the Supreme Court judgment on the application of the crime of embezzlement is that the legal relationship of a title trust is not worth protecting under the Criminal Act because it violates the Real Real Name Act. However, the role of criminal law lies in the protection of private property itself. Therefore, the concept of ownership in the Criminal Act must be independently grasped based on the status of real or legal control independent of real estate registration. If it is based on the concept of independent ownership of the Criminal Act, even in the case of a real estate title trust in violation of the Real Name Act, it will be possible to decide whether to apply the crime of embezzlement based on the independent judgment of the Criminal Act. If a fine is chosen as a criminal punishment for violating the Act on the Registration of Real Estate Under Actual Titleholder’s Name, there is a risk of fines and double punishment. It is necessary to delete the criminal punishment provisions of the Act on the Registration of Real Estate Under Actual Titleholder’s Name. It is desirable to solve the problem by applying the Criminal Act only in the case of title trusts that have been carried out for illegal purposes such as tax evasion through an investigation process. Other than that, I think that it is better to pursue only the achievement of administrative objectives with the compulsory performance and Administrative fines.

형법의 훼손과 복원

박기석(Park, Gi-Suk) 원광대학교 법학연구소 2015 圓光法學 Vol.31 No.3

The Criminal Code, the basic law of crime and punishment, should be sustained power of rule. Now Korean Criminal Code is threatened by special criminal acts. They have provided many special criminal acts for preparing special crimes. As result the special criminal acts applicate many criminal cases on behalf of the Criminal Code. For this reason ruling power of the Criminal Code is getting deteriorated on. Many provisions of special criminal acts overlapped with the provisions of the Criminal Code. Consequently confusion of application, decrease of ruling power of the Criminal Code, inconvenience of reading acts and decrease of certainty have been made. The countermeasure of this problem is these. First most of special criminal acts should be abolished as soon as possible. Because most provisions of special criminal acts overlapped with those of the Criminal Code. We can regulate most of criminal cases with provisions of the Criminal Code. The overweighting punishment of the special criminal acts are useless in regulating criminal cases. Second we have to revise the Criminal Code often and often. As change of social circumstance aspects and results of criminal actings are still changed. So the Criminal Code have to adapt this changing social circumstances and crimes. The Committee of revising the Criminal Code must be organized and members of this Committee study society-changing and right contents of the Criminal Code. We revise the Criminal Code every 1-2 years at least. Third the trivial illegal acts should be eliminated as provisions of crimes. The criteria of criminalization is severe offensing of legal interests and necessity of punishment with criminal sanctions. So behaviors under this criteria of criminalization have to be regulated not by criminal sanctions but by ethics or administrative law. the Criminal Code is the last countermeasure of regulating illegal offenses. When the ruling power of the Criminal Code restored, simple and reasonable application of criminal law can be possible. The ideal application of criminal law is that the Criminal Code regulates most of crimes simply.

형법총칙개정의 필요성과 주요쟁점

김혜정 ( Kim Hye-jeong ) 한국형사정책학회 2024 형사정책 Vol.36 No.1

Since the Criminal Act was enacted in 1953, more than 70 years have passed and our society has changed a lot. However, until now, there has been no complete revision of the criminal law to reflect social changes. In the meantime, some revisions to the criminal law were made, but this shows a backwards trend compared to the enacted criminal law. Therefore, a complete revision of the criminal law is necessary. The direction of revision of the General Provisions of the Criminal Act requires systematic reorganization while basically maintaining the content suggested by the Korean Criminal Law Association in its 2010 Criminal Act Amendment Draft. As a major issue, although there is a provision for Principle of the Legality of Crimes and Punishment in the Constitution, this principle most faithfully reflects the guarantee function of the criminal act and has meaning as the highest principle of criminal act, so it is necessary to explicitly stipulate it in the criminal act. In criminal act, it is desirable to arrange the order of provisions for ‘Section 1 Commission of Crime and Mitigation or Exemption of Sentence’ in the order of constituent elements, illegality, and responsibility, and to arrange the order of constituent elements according to the order of the general criminal system. In relation to the constituent elements, it is necessary to stipulate the Misunderstanding of Fact in Article 15, Paragraph 1 of the Criminal Act together with intent, and to separately stipulate the offense aggravated by results of a crime in Article 15, Paragraph 2. In relation to illegality, it is necessary to divide the Necessity into two categoies; justified necessity and exempt necessity. In relation to responsibility, it is necessary to amend Article 16 of the Criminal Act to include 'not knowing the law' in Misunderstanding of Law. In relation to attempts, in order to prevent an imbalance in punishment, it is necessary to revise the sentence so that sentence reduction can be applied in cases where the actor stops the conspiracy and preparation on his own and in cases where the actor prevents the outcome on his own in a situation of an impossible crime. In relation to complicity, it is necessary to reexamine whether or not to recognize co-principles of conspiracy or co-principles of negligence. In relation to punishment, it is necessary to incorporate security measures into the criminal act and lower the upper limit of imprisonment to 20 years.

형법총칙개정의 필요성과 주요쟁점

김혜정 한국형사법학회 2024 형사법연구 Vol.36 No.1

Since the Criminal Act was enacted in 1953, more than 70 years have passed and our society has changed a lot. However, until now, there has been no complete revision of the criminal law to reflect social changes. In the meantime, some revisions to the criminal law were made, but this shows a backwards trend compared to the enacted criminal law. Therefore, a complete revision of the criminal law is necessary. The direction of revision of the General Provisions of the Criminal Act requires systematic reorganization while basically maintaining the content suggested by the Korean Criminal Law Association in its 2010 Criminal Act Amendment Draft. As a major issue, although there is a provision for Principle of the Legality of Crimes and Punishment in the Constitution, this principle most faithfully reflects the guarantee function of the criminal act and has meaning as the highest principle of criminal act, so it is necessary to explicitly stipulate it in the criminal act. In criminal act, it is desirable to arrange the order of provisions for ‘Section 1 Commission of Crime and Mitigation or Exemption of Sentence’ in the order of constituent elements, illegality, and responsibility, and to arrange the order of constituent elements according to the order of the general criminal system. In relation to the constituent elements, it is necessary to stipulate the Misunderstanding of Fact in Article 15, Paragraph 1 of the Criminal Act together with intent, and to separately stipulate the offense aggravated by results of a crime in Article 15, Paragraph 2. In relation to illegality, it is necessary to divide the Necessity into two categoies; justified necessity and exempt necessity. In relation to responsibility, it is necessary to amend Article 16 of the Criminal Act to include 'not knowing the law' in Misunderstanding of Law. In relation to attempts, in order to prevent an imbalance in punishment, it is necessary to revise the sentence so that sentence reduction can be applied in cases where the actor stops the conspiracy and preparation on his own and in cases where the actor prevents the outcome on his own in a situation of an impossible crime. In relation to complicity, it is necessary to reexamine whether or not to recognize co-principles of conspiracy or co-principles of negligence. In relation to punishment, it is necessary to incorporate security measures into the criminal act and lower the upper limit of imprisonment to 20 years.

최근 저작권 침해에 대한 형사소송법 및 형법총칙 적용 고찰

이원상 한국저작권위원회 2020 계간 저작권 Vol.33 No.4

Among the copyright act regulations, articles (penelty provisions) 136, 137 and 138 that stipulate criminal punishment, Article 139 of the confiscation, Article 140 of the complaint, and Article 141 of the joint penal provisions will be related to the criminal law and the criminal procedure law system. In the criminal justice system, individual regulations subject to criminal punishment in the copyright act fall under individual provisions to which the general provisions of the criminal law apply. According to Article 8 of the Criminal Law, “The general provisions of this Act shall also apply to such crimes as are provided by other Acts and subordinate statutes unless provided otherwise by such Acts and subordinate statutes.” Thus, criminal proceedings are carried out in violation of the provisions of the copyright act, and criminal procedures are carried out in accordance with the criminal procedure act. Therefore, in this paper, I studied on the cases in Specifying the Facts Charged, Inclusive Crime, and Joint Principal Offender who conspired to commit a crime were problematic among the Supreme Court cases related to the Criminal Law and the Criminal Procedure Act. There may be differences between the criminal and copyright law circles when interpreting the provisions of the penal provisions stipulated in the copyright. However, if you look at the relationship, the interpretation of criminal law and criminal procedure law becomes the basis, and the interpretation is completed by considering the characteristics of copyright law. Thus, the value of criminal law to reduce the penalty could be applied equally. 저작권법 규정 가운데 제136조, 제137조, 제138조의 형사처벌 규정과 제139조 몰수규정, 제140조 고소규정, 제141조 양벌규정은 형사법체계와 관련을 맺게 된다. 형사법체계에서 형사처벌이 규정되어 있는 저작권법의 개별규정은 형법총칙이 적용되는 각칙에 해당된다. 이는 형법 제8조에서는 타 법령에 특별한 배제규정이 없는 한 형법총칙규정(형법 제1~86조)은 형사처벌을 규정하고 있는 타 법령에 적용된다고 규정하고 있다. 그래서 저작권법의 형사처벌 규정을 어긴 경우 형사절차가 진행되며, 형사절차는 형사소송법에 따라 진행된다. 그렇기 때문에 저작권법상 처벌규정에 대해서는 형사법 영역과 저작권법 영역의 해석이 공존하게 된다. 따라서 이번 논문에서는 최근 형사법체계와 관련된 대법원 판례 가운데 형사소송법적으로 공소사실 특정이 문제가 된 사례와 실체법적으로 죄수와 공모공동정범이 문제가 되었던 판례를 살펴보았다. 저작권법상 공소사실 특정은 저작권법 제10조 제2항에 따라 저작권의 발생은 절차나 형식을 필요로 하지 않고, 저작권 침해 유형이 매우 다양하기 때문에 공소사실을 특정하는 것이 쉽지는 않다. 그러므로 법원도 공소사실 특정에 대해서는 비교적 완화된 판단을 하고 있다. 다만, 그렇다고 해서 모든 저작권침해 범죄에 대해 완화하는 것은 아니다. 또한 공소효력과 기판력 등과 관련을 맺게 되는 죄수 관계에서도 저작권 범죄의 특이성으로 인해 포괄일죄인지 실체적 경합인지에 대한 논란이 발생할 수 있다. 따라서 저작권법상 동일성이 유지되지 않는 저작물들의 경우에는 여러 개의 침해행위가 있더라도 포괄일죄가 적용되는 것이 아니라 실체적 경합범으로 처리된다. 그리고 법원은 저작권법 위반의 사례에 대해서도 다소 강화된 공모공동정범이론을 사용하고 있다. 따라서 단순공모가 아닌 지배나 장악력 있는 기능적 행위지배를 한 경우에는 저작권 침해의 공모공동정범으로 처벌하고 있다. 결과적으로 저작권 처벌규정의 개별조문의 해석에 있어서는 형법학계와 저작권법학계 사이에 차이가 있을 수 있다. 그러나 형법총칙이나 형사소송법 부분의 해석은 형법학계의 해석방법이 고려될 가능성이 높다. 그래서 본 논문은 기본적으로 처벌을 축소해석하려는 형법학계의 경향을 반영하고 있다.

민주화 이후 형사법의 동향과 과제

김영철 ( Young Cheol Kim ) 건국대학교 법학연구소 2007 一鑑法學 Vol.12 No.-

Looking back at the criminal law of Korea, from the kingdom of ancient Joseon to the Chosun Dynasty, we find that criminal laws were operated with Oriental system, affected by neighboring country, China. Western modern criminal laws were first introduced to Korea in 1911 after the Japanese annexation of Korea by operating Chosun Criminal Order, applying Japan Criminal Act. It was not until 1945, liberation from Japanese occupation, that we Korea had our own criminal laws. The National Assembly enacted Criminal Act by Act No. 239 Sep. 18, 1953, and Criminal Procedure Act by Act No. 341 Sep. 24, 1954. Criminal Administration Act was enacted in 1950, too. As an independent nation, Criminal Act, with reference to Criminal Code and Criminal Act Draft all over the world, was enacted to follow the global current which was to protect the national human rights and to entirely realize freedom and peace. However, until the political democratization of 1987 after liberation from Japanese occupation of 1945, dictators ran laws and decrees arbitrarily, so there were a lot of cases of losing legal force of laws and decrees and it seemed that laws and decrees were decorative. People who were eager for democratization resisted the military dictatorship and finally attained their goals with the pro-democracy movement of 1987. Reflecting their claims, the National Assembly revised several articles, criticized as the poisonous articles, of criminal law in accordance with international human rights standards. Today, owing to endeavoring to operate laws and decrees democratically, we have better the positive law system and ideal law operating system than any other country. Korea has absorbed and adapted fast as much law system and operating system of the rule of law for about 60 years as the west has achieved for about 200 years. The jury system which people take part in will be introduced on Jan. 1, 2008. In the field of criminal laws, such as Criminal Act, Criminal Procedure Act, Criminal Administration Act and so forth, it`s hard to have roots completely in short Period, however modernized foreign system we introduce. Because criminal laws are the mirror of the time and the culture of the society or the country, it`s impossible for criminal law to surpass the level of people or law operators of the time, To advance and establish firmly these law systems, we have to overcome a lot of trial and error and outdated practices, and to enhance the level of acceptance by locals.

감염형법의 시대 ― 국가는 코로나19의 전염행위를 처벌하는가, 보건행정의무의 위반행위를 처벌하는가? ―

김정환 ( Kim¸ Jong Hwan ) 연세대학교 법학연구원 2021 法學硏究 Vol.31 No.4

In this paper, the changes in criminal law after the first outbreak of Coronavirus Disease-19 (COVID-19) on January 20, 2020 in South Korea are examined. The central issues are the aspects of the illegal acts regarding COVID-19, and these would also help us to look into how individuals are evaluated under the COVID-19 pandemic situation. First of all, there seems to be no distinct changes in crimes (the violation cases of criminal act) concerning COVID-19. In light of the overall size, the portion of crimes in terms of criminal act is extremely small; cases of assault, aggravated assault, and obstruction of business constitute the majority. While the objective attribution with respect to the infection of AIDS and the conflict of obligations regarding COVID-19 have been reviewed thoroughly in academia, there has been no such case examined in practice. In addition, the cases on obstruction of business concerning COVID-19 seem to be more frequently dealt with than those on assault; the point here is that COVID-19 situation acted as not only the basis for obstruction of business, but also as an aggravating factor in the sentencing phase. However, there are numerous violations of the “Infectious Disease Control and Prevention Act.” The first staple type of crimes would be refusing epidemiological investigations; a compelling criticism that this type of crime contravenes with the principle of non self-incrimination can be suggested. Secondly, there is a violation of isolation or quarantine and hospitalization measures; in this regard, the degree of violation is not defined, and the impossibility of expectation to legal act is not taken into account. The third type is the violation of restricting measures on assembly; the elements of crime are revised every two weeks in that the administrative orders on executive restrictions changes every other week. Fourthly, there is a violation of report obligation; the criminal punishment of the violations by householders are also stipulated. The primary purpose of criminal punishment in the “Infectious Disease Control and Prevention Act” is to provide a safety net to the public from infection, and presupposes the sacrifice of individuals’ freedom. In terms of COVID-19, the state focuses on punishing violations of health administrative obligations, not the infecting act. In the COVID-19 pandemic era, we need to adopt the concept of the “Criminal Law on Infection.” Under the COVID-19 pandemic situation, we are living in the era of the “Criminal Law on Infection,” in which violations of preventive measures in the “Infectious Disease Control and Prevention Act” are punished to protect individuals and society, in stead of the infecting acts being punished by the criminal law (in the narrow sense). The characteristics of the Criminal Law on Infection are: ① the public health, which is to say the benefit and protection of the law, ② the social exclusion policies, ③ the hastening of the criminal punishments by applying the concept of suspected cases of infectious diseases, ④ the adherence to the health administrations. However, one should be aware of the fact that just because the concept of “the Criminal Law on Infection” is used, it is not to say that the concept should be pursued nor be deemed impeccable. Even if violations of the “Infectious Disease Control and Prevention Act,” which are unexplainable through the concepts of traditional criminal law, are adopted, the relevant problems would have to be solved. A constant endeavor to criticize and improve is needed in order not to let the state use the Criminal Law on Infection as a political tool and not to treat individuals as mere members of an entire group.

형법 제307조 제1항 명예훼손죄에서 ‘사실 적시’의 의미와 형법 제307조 제2항 ‘허위사실’ 착오 해석방법

하태영 영남대학교 법학연구소 2019 영남법학 Vol.0 No.49

‘Publicly alleging facts’ in Article 307 Provision(1) and Article 309 Provision(1) of Criminal Act should be interpreted as ‘statements of true facts.’ ‘Fact’ is a fact that has occurred or existed (事實, eine Tatsache, etwas Geschehenes oder Bestehendes). 'What is not a fact that has occurred or existed' is 'false fact' (虛僞 事實, eine unwahre Tatsache). If ‘false fact’ is stipulated in Article 307(2) and Article 309(2) of Criminal Act, ‘true fact’ in Article 307(1) and Article 309(1) must be considered opinions of legislators. Article 310 of Criminal Act clearly states that "the conduct of Article 307(1) is a true fact." This is the way of interpretation that is faithful to our legislators' opinions (literal interpretation, logical interpretation, and purposive interpretation). The ruling conclusion of the Supreme Court case seems simple at first glance, but it has a fatal flaw in criminal law dogmatics because Article 15(1) of Criminal Act made by the legislature will become meaningless. Therefore, the Supreme Court's argument should be modified. The Supreme Court is solving the problem of the mistake of truth regarding publicly alleging facts by means of the equivalence theory in Article 310 of Criminal Act. In addition, some scholars are seeking for solutions based on the accepted risk theory. They are all trying to find evidence in Article 310. However, we cannot agree with this interpretation because it cannot be regarded as a correct interpretation faithful to Article 310. The term ‘equivalence’ is not found in Article 310, and ‘duty of review’ does not offset objective requirements. It is asserted that the interpretation of Article 310 should be faithful to the literal, logical and purposive analyses. ① Behaviors of Article 307(1) of Criminal Act, ② True Facts, ③ Only Public Interests, ④ Doer's Recognition of the Objective Requirements of ①, ②, and ③. These four requirements are useful in judgment. Mistakes regarding ①, ②, ③, and ④ requirements should be asked for responsibility. In addition, it is difficult to agree with the discrepancy of illegal precondition fact. The mistake of specific requirements is the discrepancy of fact while the mistake of recognition of illegality is the discrepancy of law. If a doer believed that publicly alleging facts were true, only the intentional element of Article 307(1) of Criminal Act is admitted. If the doer believed his or her conduct was the justification defense, its solution is to apply the discrepancy of law. When there is a good reason based on Article 16 of Criminal Act, responsibility can be excluded, which, I think, is the best interpretation. The case of the Supreme Court unreasonably extended the meaning of ‘fact’ in Article 307(1), breaking the meaning of Article 310 of Criminal Act. The Supreme Court case does not exclude the illegality of Article 310 and does not admit the discrepancy of law of Article 16 of Criminal Act. The Supreme Court case rules a defamation offense under Article 307(1) of Criminal Act. Article 307(1) specifies statements of true facts, Article 307(2) includes statements of false facts, and Article 307(2) and Article 15(1) contain the mistake of truth. In this light, serious criminal intent can not be admitted. The Supreme Court case applies criminal intent under Article 307(1) of Criminal Act. 형법 제307조 제1항과 제309조 제1항에서 ‘사실 적시’란 ‘진실한 사실 적시’로 제한하여 해석하여야 한다. ‘사실’은 발생하거나 존재한 사실(事實, fact, eine Tatsache, etwas Geschehenes oder Bestehendes)이다. ‘발생ㆍ존재한 사실이 아닌 것’은 ‘허위사실’(虛僞事實, eine unwahre Tatsache)이다. 형법 제307조 제2항과 제309조 제2항이 허위사실로 규정되어 있다면, 형법 제307조 제1항과 제309조 제1항은 ‘진실한 사실’이 입법자 의사라고 보아야 한다. 형법 제310조 조문은 “제307조 제1항의 행위가 진실한 사실로서”라고 명확하게 규정하고 있다. 이것이 우리 입법자 의사에 충실한 해석방법이다(문리해석ㆍ논리해석ㆍ목적론해석). 대법원 대상판결 결론은 일견 단순 한 것 같지만, 형법 도그마틱에서 치명적 결함을 갖고 있다. 입법부가 만든 형법 제15조 제1항 의미가 없어지기 때문이다. 따라서 대법원 논지는 변경되어야 한다. 대법원은 적시사실의 진실성 착오문제를 형법 제310조 상당성이론으로 해결하고 있다. 또 일부 학자들은 허용위험법리이론으로 해결방안을 찾고 있다. 모두 형법 제310조에서 근거를 찾으려는 노력들이다. 그러나 이러한 해석방법에 동의할 수 없다. 형법 제310조 법문에 충실한 올바른 해석이라고 볼 수 없기 때문이다. ‘상당성’이란 용어는 형법 제310조 법문에 없으며, ‘검토의무’로 객관적 요건을 상쇄시킬 수 없다. 생각건대 형법 제310조 해석방법은 문리해석․논리해석․목적론해석에 충실해야 한다. ① 형법 제307조 제1항 행위, ② 진실한 사실, ③ 오로지 공공의 이익, ④ 객관적 요건인 ①②③에 대한 행위자 인식이다. 네 가지를 판단하면 될 것이다. ①②③④에 대한 착오문제는 책임으로 넘겨야 한다. 또한 위법성전제사실착오론도 동의하기 어렵다. 구성요건 착오는 사실착오이고, 위법성인식착오는 법률착오 문제다. 만약 행위자가 적시한 사실을 진실이라고 믿었다면, 형법 제307조 제1항 구성요건 고의만 인정하고, 또 행위자가 자기 행위를 위법성조각사유로 믿었다면, 법률착오로 해결하면 된다. 형법 제16조에 근거하여 정당한 이유가 있는 경우, 책임을 조각하면 된다. 나는 이것이 최상의 해석방법이라고 생각한다. 대상판결은 형법 제307조 제1항 ‘사실’의 의미를 무리하게 확장시켜 놓았다. 형법 제310조 법문 의미를 붕괴시키고 있다. 대상판결은 형법 제310조 위법성이 조각되지 않는다. 형법 제16조 법률착오를 인정할 수 없다. 대상판결은 형법 제307조 제1항 명예훼손죄가 성립한다. 형법 제307조 제1항은 진실한 사실 적시, 형법 제307조 제2항은 허위사실 적시, 진실성 착오는 형법 제307조 제2항과 형법 제15조 제1항을 적용하여 중한 고의를 인정할 수 없어, 형법 제307조 제1항을 고의를 적용한다.

형법 제17조 인과관계 규정과 연계한 과실범 해석론에 관하여 - 과실범 이론의 역사적 고찰에 기반한 형법해석의 탐구 과정 -

金駿昊 ( Kim Junho ) 법조협회 2024 법조 Vol.73 No.6

Theories concerning the content and systematic position of criminal negligence have evolved in line with shifts in the prevailing social currents. This developmental history parallels changes in the stages of the criminal theory. In modern criminal jurisprudence, negligence theory has progressed through four stages: ① Old Theory of Negligence; ② New Theory of Negligence; ③ Enhanced New Theory of Negligence; ④ Modified Old Theory of Negligence. This study posits that the Modified Old Theory of Negligence best aligns with the interpretative approach in Korean criminal law. It empirically examines whether this theory is consistent with the interpretation of the provisions of our Criminal Act. To achieve this, the study analyzed numerous court rulings on negligent crimes, paying particular attention to the recurring patterns found in the judicial reasoning regarding the causality in negligent acts. Article 17 of the Korean Criminal Act, under the heading of ‘Causality,’ explicitly states that an act must be ‘linked to the occurrence of risk that constitutes an element of the crime.’ Consequently, negligent acts must necessarily be connected to the risk of harm resulting from such acts. The risk inherent in negligent acts is supported by the objective foreseeability that such acts may lead to harmful outcomes. The greater the objective foreseeability of an act causing a harmful result, the higher its level of risk. Therefore, when a harmful result is foreseeable, the actor has a duty to take necessary measures to avoid it―referred to as the ‘duty to prevent result.’ A violation of this duty constitutes negligent acts. However, the mere existence of a negligent act does not automatically establish criminal negligence; there must be conclusive evidence of a causal relationship between the negligent act and the resulting harm. Many court precedents have established cases where, although a negligent act was committed, the absence of causality between the act and the result precluded the establishment of criminal negligence. This study is significant in verifying that this judicial reasoning aligns harmoniously with the interpretation of negligence provisions in Korean criminal law.