연결효과에 의한 상상적 경합에 대한 비판적 고찰

• 영문명: Critical Research on Ideal Concurrence by Connective Effect
• 발행기관: 충북대학교 법학연구소
• 저자명: 김태계(Kim Tae-kye)
• 간행물 정보: 『법학연구』第21卷 第3號 (2010), 33~63쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.12.30

영문 초록

There are many that criminal cases punish to with real concurrence the case where idead concurrence is being mixed. The such case problem is very complicated. When with real concurrence idead concurrence is repeated, the problem occurs. The judicial precedent of Germany afterwords recognizes ideal concurrence in case. Our country judicial precedent recognizes but with the real concurrence. The reason the criminal law of Germany continuation fault recognizes ideal concurrence on gap with new crime. If crimes A and B are in real concurrence state and each crime is ideally concurring with crime C, they recognize ideal concurrence in compliance with connective effect from Germany and Japan. The biggest reason torecognize commective effect is to avoid double evaluation of crime C. The responsibility of the namely defendant is heavy is the thing too. There is an opinion where also our country accepts this theory. The opinion which negates this is many from our country. The reason in compliance with the crime where real concurrence is different is not a possibility becoming ideal concurrence Also according to weight of connection crime real concurrence ideal concurrence it sees is that the fact that it is decided. Solution method about reiteration competition of and ideal concurrence is that it controls with ideal concurrence and real concurrence order with real concurrence and ideal concurrence real concurrence afterwords that of namely AC ideal concurrence and BC ideal concurrence AB real concurrence after adding an extra weight, to compare a AB and the C and to punish. This is Comparative unit theory. when it accepts this theory, the Supreme Court will be able to maintain the logic which is consistent. Therefore, Supreme Court judgment 1, 2, 3 should be changed. That is, when real concurrence and ideal concurrence concur, it handles real concurrence first and becomes connective effect then.

목차

Ⅰ. 대상판결의 사실관계와 판결요지

Ⅱ. 문제의 제기

Ⅲ. 연결효과의 범위와 유형

Ⅳ. 독일과 일본의 논의 상황

Ⅴ. 우리나라의 학설상 논의

Ⅵ. 대상판결의 이해

Ⅶ. 결론

키워드

Real concurrence Ideal concurrence Connective effect Double evaluation Determination of punishment