상해죄의 동시범 특례규정의 올바른 해석과 입법론

Abstract

The special regulations of the concurrent crimes of the infliction of injury are known to have been revised with the intention of legislating the criminal policy of preventing the concurrent crime of inflicting injury as a group by burdening a flag bearer with full responsibility with the result of the injury, which lightens the load of evidence for the prosecutor. However, with respect to substantive law, penalty is applied to the flag bearer even on acts that did not ultimately achieve the result, and with respect to legal proceedings, it is difficult to conclude that it would form harmony with the principle of the presumption of innocence. Accordingly, until such regulation is deleted based on the legislator or an unconstitutional judgment is ruled by the Constitutional Court, it is necessary to apply strict rules. For instance, it would be just to strictly interpret independent acts as simultaneous or at least around the same time, to exclude the result of a serious injury or death from the infliction of injury. With respect to legislation, it would be desirable to delete the current regulations of Articles 19 and 263 of the Criminal Act and introducing a penal code, such as “when an independent act contends to cause an injury or death and the cause of the act is undetermined, the act is deemed as an accessory to crime, and each act is subject to less than 5 years of imprisonment or less than 10,000,000 won in fine.”