결과적 가중범의 미수에 관한 소고

• 영문명: Consideration on An attempted crime of Consequentially Aggravated Crime
• 발행기관: 한국형사법학회
• 저자명: 최정일(Choi, Jung-Il)
• 간행물 정보: 『형사법연구』형사법연구 제25권 제3호, 33~56쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2013.09.30

영문 초록

Before describing An attempted crime of Consequentially Aggravated Crime, First, The type of An attempted crime of Consequentially Aggravated Crime should be explicitly established. That is, This type is only limited as one case; Basic crime merely extended to the stage of An attempted crime but has finally caused heavy effects. Second, Two prerequisites should be clearly set; a) The Fulfillment of Immediacy b) The Punishment of Basic Crime. a) The Fulfillment of Immediacy means that The Act-related Consequentially Aggravated Crimes can be contained in arguing An attempted crime of Consequentially Aggravated Crime but The Result-related Consequentially Aggravated Crime should be excluded from debating An attempted crime of Consequentially Aggravated Crime. b) The Punishment of Basic Crime means that if the basic crime is not unpunishable it should be thought that there is not the basic crime. therefore, the general and typical danger which is immediately linked to heavy effects(mostly injury or death) doesn`t exist in the basic crime. After all, 'Unpunishable Basic Crime' - this term represents that the basic crime not actually exist. I have an evident opinion that An attempted crime of Consequentially Aggravated Crime can only be meaningful to the Act-related Consequentially Aggravated Crimes which have the punishable basic crimes. Also, there are usually two theories concerning An attempted crime of Consequentially Aggravated Crime. One is the affirmative view which supports that An attempted crime of Consequentially Aggravated Crime is built, The other is the negative view which denies that An attempted crime of Consequentially Aggravated Crime is built. The negative view is the position which both the Supreme court and most scholars advocate. so to speak, The negative view has been regarded as the majority opinion. so far, they have insisted that all the punishment regulations of An attempted crime regarding Consequentially Aggravated Crime only resulted from legislator's mistakes. Considering the substance of Consequentially Aggravated Crime; In special, Principle of Immediacy, I think that the affirmative view is far more rational than the negative view. In current criminal law, Not only the basis of aggravated punishment but also the extent of aggravated punishment should we consider. In examining our regulations of Consequentially Aggravated Crime, In terms of the sentence, we can notice that the regulations of Consequentially Aggravated Crime are much heavier than those of the Simple Combination Form(a deliberate offense and a criminal negligence) or even the deliberate offense of heavy effects(death or injury). Appropriate reduction of sentences are certainly needed. With the proper revisions, The regulations of Consequentially Aggravated Crime can correspond to the principle of responsibility.

목차

Ⅰ. 문제의 제기

Ⅱ. 논의의 전제 조건

Ⅲ. 기수일원설

Ⅳ. 미수일원설

Ⅴ. 기수ㆍ미수이원설

Ⅵ. 기본범죄의 미수와 가중형벌의 임의적 감경 원용설

Ⅶ. 결론

참고문헌

Abstract

키워드

기본범죄 중한 결과 미수 위험성 불법 직접성 basic crime heavy result attempted crime danger illegality Principle of Immediacy