형사판례 평석에 관한 몇 가지 관견과 회고

• 영문명: Some Consideration on Reviewing Criminal Precedents21)
• 발행기관: 한국형사판례연구회
• 저자명: 장영민(Chang, Young-Min)
• 간행물 정보: 『형사판례연구』형사판례연구 제27권, 31~53쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2019.06.30

영문 초록

In this article, which is prepared in honour of Yong Hyun Kang, Attorney, the author tries to shed light on the nature of commenting criminal law cases. Scholars and practitioners of criminal law usually think of what the criminal law is for as realization of commutative or corrective justice. But criminal law pursues not only commutative(corrective) justice but also distributive one in its realization. Nowadays it is in vogue that distributive justice is regarded as social justice in a large scale of whole societal distribution, but it has its own proper meaning, that is, proportional(geometrical) justice. The author reviews, on occasion of his retirement, his own comments he has strived during three decade which were published in this Journal. Among them was a review on a case on murder by omission. He asserts that, even though in usual homicide cases the equivalence between commission and omission is not to be a question at issue, this case commented by him can be an example which raises exactly this question. The case is as follows: An uncle, who had an intention of killing his nephew, allured the child to take a walk on a levee with steep slope, and, while the child recklessly jumped and leaped on it, he rolled off to the reservoir to be drowned. The author proposed that his rolling off to the reservoir be regarded as the uncle’s pushing him to the reservoir, that is, this time can be interpreted as the undertaking the criminal act(commencement d’exécution). Other opinion on this case is that only when the child is put to the water of the reservoir, the crime begins, and taking a walk on the levee is characterized only at a preparatory stage. If this is right, and if the defendant pleas of his inability of swimming for rescuing the child, he is guilty only of preparation for murder even in such a case. The other case re-reviewed in this article is about so-called dolus generalis, in which the first action with intention of murder failed to achieve the result, but only through the second action without intention thereof the death of the victim occurs as a result. Though it is a minority opinion that this case can be interpreted as an attempted murder and an accidental homicide, this interpretation, the author urges, misses to consider the proportionality between two similar cases. The one is as just mentioned, the other one is a case that an action is committed with intention of murder, but the victim does not die soon after the commission, he dies only after a little long time, without no further action by the criminal, while the victim’s wound does not have been properly cared. The latter case may well be interpreted as a murder of the criminal. The author proposes a solution to this question that the result occurred by second action without criminal intention can be imputed to the first action only if the second action is a typical one that can realize the intention of the criminal as a result of the first action with that intention. Criminal law provides various punishments on various crimes, which have to be distributed proportionally according not only to the crime itself at issue but to other crimes as well. Some interpretations on the hard (criminal) cases taken by scholars and practioners appear to have missed this proportionality because of their ardour to do commutative(correctional) justice to each crime.

목차

Ⅰ. 서언

Ⅱ. 서설적 고찰: 형법 해석의 지향점

Ⅲ. 몇 가지 판례평석에서 남은 문제점들

Ⅲ. 형법과 형법해석 ― 하나의 시대착오적 고찰

Ⅳ. 결어

키워드

배분적 정의 인과관계와 객관적 귀속 개괄적 고의 부작위범 동가치성(동등성) distributive justice causation in criminal law dolus generalis omissive delicts equivalence of omission and commission in omissive delicts