부진정 결과적 가중범의 본질 및 죄수론에 관한 비판적 검토

Abstract

True consequently aggravated crime has become a reason for legislation of making it severer punishment than compound crimes of basic crime and the severe consequence negligence because of its characteristics that typical risk incorporated in basic crime is realized. The legislation of true consequently aggravated crime appears as a form of combined crime of basic crime of intent and severe consequence negligence. Then, it generates the imbalance of punishing the true consequently aggravated crime more lightly than the sever consequence negligence with weaker illegality while there is no legislation to punish the combined form of basic crime and severe consequential deliberate offence. The concept of untrue consequently aggravated crime inevitably appeared in order to resolve this irrationality. In this case, it should be interpreted that severe consequential deliberate offence is included in the frame of legislation of true consequential aggravated crime. Since untrue consequently aggravated crime is a type of crime recognized by precedents in the reality, it should be acknowledged that it is not a simple hypothetical concept but it has become one of types of crime with substance. Since severe consequential deliberate offence among untrue consequently aggravated crimes has become one of the components by being combined with basic crime of intent, it has a characteristics of deliberate offence as a whole and a combined crime at the same time. Intent and negligence possess double characteristics that they are the factor of a component and a responsibility factor at the same time. As a result, severe consequential deliberate offence owns the essence that its illegality is much more cumulated and its possibility of being criticized is higher when compared to those of severe consequential negligence. Therefore, this essence of untrue consequently aggravated crime shall be always considered while discussing a number of issues about untrue consequently aggravated crime, especially the number of offences. The majority theory argues that it is compound crimes of Negligent Homicide of Setting Fire to Present Living Building and homicide when someone committed a homicide with intent of homicide kill by setting fire to present living building, and its rational behind this claim is that intent of homicide is not included in the illegality of Negligent Homicide of Setting Fire to Present Living Building. Since it ignores the fact that severe consequential intent immediately has the characteristics of deliberate offence, it is hard to recognize the validity of the major theory. On the other hand, the judicial precedents aim to compare only the gravity of punishment whether it is a simple one offence or compound crimes when discussing the number of offences of untrue consequential aggravated crime, but I think these opinion are not appropriate. The substantive judgement about whether a crime is one offence or several offences shall be made through considering the evaluation of components and the interests protected by law, which are general standards suggested by judicial precedents in other crimes, as well as the gravity of punishment.