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KICJ Research Reports

Law and Economics of Crime and Criminal Justice Policy in Korea(Ⅱ): Major Ideologies, Requirements and Principles Under Criminal Law 사진
Law and Economics of Crime and Criminal Justice Policy in Korea(Ⅱ): Major Ideologies, Requirements and Principles Under Criminal Law
  • LanguageKorean
  • Authors Daekeun Kim, Jongin Lee
  • Date December 01, 2010
  • Hit378

Abstract

This study examines constituting matters of criminal law, including attempts, intents, causation, and responsibilities in the context of law and economics.

First, each patterns of attempts, including interrupted attempt, abandoned attempts, and impossible attempts, were analyzed in the view of law and economics. Also analyzed is the matter of whether criminal sanctions against attempted criminals such as the chapter 25 of the criminal codes of Korea and the rule of reduction and exemption of penalties are justifiable based on the aim of policy toward the optimal deterrence of crimes.

The study's result is that it is impossible to reach the social goal of the optimal deterrence of crime with only criminal sanctions against successful criminals, and that the goal was achievable by utilizing the criminal sanctions against attempted criminals as a complement.

Also, one can conclude that in case the expected level of damages is small or relatively low, it is possible to achieve the goal of criminal law of the optimal deterrence of crimes even when penalty for attempts was not accompanied. On the other hand, if the expected level of damages is very high, the goal is only attainable when penalty against attempts was accompanied, along with penalty against accomplished crimes.

Moreover, the study discusses the problem of the attempted criminals in the victim's perspective of precaution, and the fact how criminal law and/or criminal policies could be the incentives for calling for attention of potential victims.

For the analysis of intent, causation, and responsibility, this study refers to existing s based on the significance of intent in the criminal law.

This includes a comparison of the problem of criminal intent, which is defined as the perception of actualization of the necessary conditions of objective composition and intention to actualize this, with accidents based on rules of torts.

Also, criminal intent is examined in the perspective of deterrencel of crimes and incapacitation. Furthermore, the study examines criminal causation in an economic context, based on so-called the cause-in-fact theory(조건설) and the proximate cause theory(상당인과관계설). It discusses intuitively in an economic context that attitude of criminal responsibility is justifiable not only in the perspective of the optimal deterrence of crime, but also in the perspective of incapacitation of crime.
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