영산홍사건(Rhododendron indicum)

• 영문명: The Case of the Rhododendron indicum : [The Subject Case of Study] Supreme Court Decision 2008Do6080 delivered on October 23, 2008
• 발행기관: 한국형사법학회
• 저자명: 허일태(Hoh, Il-Tae)
• 간행물 정보: 『형사법연구』형사법연구 제21권 제2호, 275~298쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.01.29

영문 초록

A had grubbed Rhododendron indicum, which was above 1.5 m tall and 1 m wide. A did not carry it to another place by herself; she called her husband (B) and asked him to do so. She was found carrying it with him. The Supreme Court thus held: “When the actor grubbed a tree to steal a living tree, at that time, the owner’s possession of the tree was broken, and the owner, in relation to the tree, was under the actual domination of the actor. At that precise moment, larceny was consummated.” The Court thus ruled that larceny was consummated at the time that the tree was grubbed. However, the Supreme Court held that when the engine of the car in question (an article of great bulk, like Rhododendron indicum) had not yet been ignited, larceny was not yet a consummated act but was still an attempted one (Supreme Court Decision 94Do1522 delivered on September 9, 1994). In this case, it can be said that the Supreme Court would rule that the car theft was consummated when the car’s engine was ignited by the actor. The Supreme Court had assumed such standpoint heretofore because from 1964 to July 2008, the Supreme Court held that larceny is consummated when the actor carries a property that is under another person’s possession, against the possessor’s will, to one’s or a third person’s possession. I think that the Supreme Court should have sustained the aforementioned exposition in the case of Rhododendron indicum so that it would suit the proper substances and contents of stealing. Thus, it is valid to claim that the larceny of the Rhododendron indicum was consummated not when A had grubbed the tree but when A had carried the tree into her car to assert her new possession of it. It is also proper that A, who planned to steal the Rhododendron indicum and who performed the acts leading to such, is not guilty of the criminal attempt of special larceny in Article 331 but of the criminal attempt of larceny in Article 329 of the Criminal Law. B could be punished as an accessory, who aided and abetted the commission of the crime by A.

목차

Ⅰ. 문제의 제기

Ⅱ. 절도죄의 보호법익과 보호의 정도

Ⅲ. 절도죄의 행위객체와 실행행위로서 절취

Ⅳ. 영산홍사건에 대한 평석

Ⅴ. 결 론

[Abstract]

키워드

영산홍 대법원 입목의 점유 행위자의 현실적 지배 특수절도의 미수 Rhododendron indicum the Supreme Court the owner’s possession of the tree the actual domination of the actor the criminal attempt of special larceny