@article{ART001579366},
author={송희식},
title={The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law},
journal={DONG-A LAW REVIEW},
issn={1225-3405},
year={2011},
number={52},
pages={383-416}
TY - JOUR
AU - 송희식
TI - The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law
JO - DONG-A LAW REVIEW
PY - 2011
VL - null
IS - 52
PB - The Institute for Legal Studies Dong-A University
SP - 383
EP - 416
SN - 1225-3405
AB - A crime is defined as an illegal and culpable act conforming to ‘Tatbestand(elements of an offence)’ in the established criminal Jurisprudence. All crimes are prescribed one by one in the individual provision of criminal law and others. If it was not prescribed by a criminal law, it is not a crime. There is no exception; no crime without law. This is the principle of legality. So definition of a crime belongs to the typical extensional definition. And justification defense and excuse defense are also extensional definition, because they are also prescribed as patterns of act. They are not attributes of entity. But in the common view, ‘Tatbestand’ is regarded as an attribute of crime such as illegality and culpability. This is due to the category mistake and due to the fallacy of confusing intensional definition and extensional definition.
Now, if we look at the real state of affairs, we can find a system of three extensional definitions: ‘Tatbestand’, “justification”, “excuse”. The relation of them is a confrontational system, not a staged system. Then what are illegality and culpability? They are of elementary concepts of a crime. For example, homicide has two conceptual dimensions, one is a domain dimension of homicide concept; “the killing of a human being by a human being”. The other is a range dimension of homicide concept, such as “social harmfulness, blameworthiness of that wrongful results, conduct, attendant circumstances, etc.” The domain and range of concepts have functional correspondence. In Frege's analysis, y = f(x), values of x constitutes domain, values of y constitute range. The illegality and culpability of homicide are the range of homicide, which corresponds functionally to each element in the domain of homicide. The domain and range concepts are relevant to the elements of “justification” and “excuse”.
Thus we are proposing that the theoretical system of crime has three confrontational categories and two functional dimensions: ‘Tatbestand’, “justification”, “excuse”, and domain and range. Ranges(the illegality and culpability) and domains(conceptual scope of offence) cut across the ‘Tatbestand’, “justification”, “excuse”. This system of proposition may view studies in criminal law in a new sight.
KW - individual provisions of criminal law;crime;offence;Tatbestand;elements of offence;illegality;liability;culpability;theoretical system of crime;intensional definition;extensional definition;domain;range;Frege;category mistake;functional relation
DO -
UR -
ER -
송희식. (2011). The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law. DONG-A LAW REVIEW, 52, 383-416.
송희식. 2011, "The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law", DONG-A LAW REVIEW, no.52, pp.383-416.
송희식 "The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law" DONG-A LAW REVIEW 52 pp.383-416 (2011) : 383.
송희식. The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law. 2011; 52 : 383-416.
송희식. "The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law" DONG-A LAW REVIEW no.52(2011) : 383-416.
송희식. The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law. DONG-A LAW REVIEW, 52, 383-416.
송희식. The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law. DONG-A LAW REVIEW. 2011; 52 383-416.
송희식. The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law. 2011; 52 : 383-416.
송희식. "The Practical Essentials of Individual Provisions and the Logical Essentials of 'Tatbestand' in Criminal Law" DONG-A LAW REVIEW no.52(2011) : 383-416.
