범행 동기에 따른 가중처벌의 문제점

• 영문명: The Problems of Additional punishment based on motive of crime -an example of hate crime-
• 발행기관: 한국형사정책학회
• 저자명: 박상민(Park, Sang-Min)
• 간행물 정보: 『형사정책』刑事政策 第29卷 第3號, 127~150쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.12.31

영문 초록

In this article, I have studied the criminal theoretical point of view, hate crime that is motivated by prejudice or hate for a person s attributes (such as a gender, race, disability, religion, sexual orientation), whether it is right to punish additionally for general crimes. In our society, with a spotlight for this crime, the necessity for additional punishment for regular crimes has constantly discussed. According to the argument, hate crime is a possibility of special criticism for the attitude of violating equality of all people and human dignity and there is huge risk of crime because it is based on hatred or hostility. In particular, the fact that it belongs to a particular group has a unique illegality with a anxiety and fear that can be a victim at any time. Therefore, it needs a different criminal measure against the existing crime. However, the argument that the hate crime should be additionally punished for general crimes may be limited from the following reasons. First of all, in a liberalism constitutional nation, a criminal law based on mind that weighted evaluation on behaviors with a simple thought is not allowed. In addition, motivations or feelings should not be regarded as a specially important aspect of the determination of punishment, as well as stage for criminal establishment. Second, if there is a risk of violating the rights and profits of others due to prejudice or hate, the national measures are related to the Police Act area, not the criminal law. It is necessary to set strict limits on criminal law and police act in order to prevent constitutional nation from becoming a police nation. The additional punishment for hate crime is an example of a regulation that makes the limit unclear. Third, the legal faith of the general public, that is, the belief that potential victims protect and safeguard their safety is not an independent legal benefit that criminal law should protect. Fourth, it is difficult to form a clear concept of hate and to formulate its compositional requirements accordingly. The way to punish them additional punishment with an emphasizing specific groups that are subject of prejudice or hate, it deepens social stigma and collective conflict. Protection creates another discrimination. Fifth, there is a possibility that the veto of the statement is violated in the process of figure out the motive of the actor. Sixth, there is doubt about the effectiveness of additional punishment of hate crime. In other words, it is not known whether the additional punishment can actually prevent and reduce the crime. If the state is merely the most basic symbolic function of hate crimes. It is doubtful whether the weighting of a punishment is necessary. If prejudice, hate of a particular group appears as a crime, as the result, the impact and harm may be great damaged and it is sure that these crime should be suppressed. However, it needs to approach criminal policy measures carefully that based on strong punishment. Even if the importance of the prevention can be emphasized in criminal policy, there should be limitations. The criminality must have a standard that can be applied equally to anyone. Additional punishment should not be judged on the basis of specific motives of the actor s intention only because it conforms to law feeling of the general public. It is also the request of constitutional nation. Rather than enact laws for additional punishment. It is necessary to find ways to resolve discrimination and hate by social interaction as communication and empathy in a healthy community.

목차

Ⅰ. 들어가며

Ⅱ. 혐오범죄의 특유성

Ⅲ. 가중처벌의 필요성?

Ⅳ. 맺는 말

키워드

혐오범죄 범행 동기 가중처벌 심정형법 차별 hate crime motive of crime punishment criminal law based on mind discrimination