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The Signifié of Culpability in Criminal Law

  • DONG-A LAW REVIEW
  • 2009, (43), pp.57-85
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

송희식 1

1선문대학교 법과대학

Candidate

ABSTRACT

The purpose of this study is to examine the culpability conception in criminal law with the linguistic analysis tools. The concept of culpability has been debated by many criminal law theory researchers during the last century in Germany. This study reviewed the history of culpability concept studies in German and groped for new culpability theory with criticism from linguistic and philosophical analysis. A linguistic sign is link between meaning and its sound pattern. The sound pattern is the hearer's psychological impression of a sound. We call it as ‘signifiant’ as Ferdinand de Saussure did. The meaning of a linguistic sign is called as ‘signifié’ in Franch word. As Saussre mentioned the link between signifiant and signifié is arbitrary. So there is no one common signifié matching to a signifiant used in all context. There at most is a family resemblance (Familienänlichkeiten) in all signifié of one siginfiant in all contexts. It is presumed that there is a unique distinctive feature in signifié of jurisprudential siginfiant. It is assumed that all signifié presupposes a case, controversy, criminal case, and others. So we call jurisprudential signifié as case signifié. The case signifié of jurisprudential siginfiant has semantic structure: Case signifié has structural meaning, there is the subject of story as the subject of a sentence, there is the subject of enunciation as speaker of sentences, there are behavior, objects, results, and others. In long history of the studies of culpability concepts, there was fallacy of essentialism in the belief that culpability is a real substance. Culpability was regarded as psychological substance such as intent, knowing, recklessness, negligence. After a while of periods, culpability was regarded as normative valuation-itself, such as blameworthiness, the possibility of expectation, the possibility to do lawful action. Since the preventive jurisprudence is prevailing, it regards culpability as special and general prevention. The case signifié of culpability as jurisprudential siginfiant has two sides. One is expectation of the subject of enunciation. The other side of that is acceptability of the subject of story. The synthesis of those two sides is blameworthiness of normative culpability theory. But the difference of our view from that theory is case signifié having semantic structure.

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