형법 및 형사특별법상 재산범죄 가중처벌규정의 문제점과 개선방안 - 상습범, 누범 및 가중적 구성요건을 중심으로

• 영문명: Problems and Suggestions regarding Aggravated Punishments of Property Crimes in the Korean Criminal Code and Criminal Special Acts
• 발행기관: 한국형사법학회
• 저자명: 한상훈(Han Sang-Hoon) 곽규홍
• 간행물 정보: 『형사법연구』형사법연구 제26권, 139~168쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.12.01

영문 초록

  There has been sharp critics on criminal special acts, which provide for harsher punishments of specific crimes than the Korean Criminal Code. The present article shares the demand that it is desirable to incorporate criminal special acts into the Criminal Code. In addition, it maintains that the ongoing legal reform efforts have much to do with the criminal code amendments, because the Lay Participation in Criminal Cases Bill and the Sentencing Guidelines Bill, though procedural regulations as such, are hard to be implemented without some modifications and rationalizations of substantial elements and punishments of crimes. The currently effective Korean Criminal Code is already more than 50 years old, and is rather lawyer-oriented, and not layperson friendly.
  The full amendment Bill of 1992, drafted by a Ministry of Justice commission, could be helpful, but with some limitations. The Bill of 1992 eliminated virtually all aggravated punishments of habitual criminals, however, in 2005 the National Assembly abolished the protective detention in the wake of a series of weeks long fast struggles of protective inmates insisting that the protective detentions are double punishments and violation of their constitutional rights.
  The abolition of the protective detention has a strong influence on the criminal policy, legal construction, sentencing, etc, especially in the field of property crimes and criminal policies. Taking this recent developments into consideration, the present article suggests that the aggravated punishments of habitual crimes should remain, but need some changes, that is, objective elements of habitual crimes should be codified for the benefit of the legal stability, and the additional punishments should be within the range of 2/3 of the basic crimes(total: 1 and 2/3). Other suggestions refer to the elimination of Night Trespass Theft, and introduction of Trespass Theft(regardless of night or day), increase of punishments by the value of property losses, and so on.

목차

Ⅰ. 들어가는 글
Ⅱ. 상습범 가중처벌규정의 검토
Ⅲ. 범죄액에 따른 가중처벌의 검토
Ⅳ. 기타 재산범죄 가중처벌의 쟁점
Ⅴ. 재산범죄 개정안 검토
Ⅵ. 맺음말
〈Abstract〉
[토론문] : ‘형법 및 형사특별법상 재산범죄 가중처벌규정의 문제점과 개선방안’에 대한 토론문

키워드

재산범죄 상습범 포괄일죄 피해액가중 입법개정 aggravated offense habitual criminal Gewohnheitsverbrechen Sammelstraftat