결과적 가중범과 고의 결합범의 입법통일성 결여에 따른 문제점

Abstract

There are a lot of legal provisions of consequently aggravated and combined crimes under the Korean Criminal Code. Clause 2, Article 15 of The Korean Criminal Code is generally regarded as the ground regulation of Consequentially aggravated crime. It provides that “Crimes for which punishment become more severe due to results thereof, shall not be punishable for more severe crimes if such results were not foreseeable.” The consequentially aggravated crime consists of the combination of a deliberate offense and a criminal negligence. The basic crimes of consequentially aggravated crimes are heavily regulated which often lead to heavy effects, mostly injury or death. So the punishment of consequentially aggravated crime is much heavier than that of the simple combination form of a deliberate offense and a criminal negligence dealt with by Article 40. The combined crimes especially, with the consequently aggravated crimes, are ruled also by individual provisions under the Korean Criminal Code. For example, a robber who injures another or causes injury to another, shall be punished by imprisonment for life or at least seven years(Article 337). If a robber murders another person, he shall be punished by death or imprisonment for life. If it results in the death, one shall be punished by imprisonment for life or ten or more years(Article 338). According to the Korean Criminal Act, it shall be punishable as an attempted crime, when an intended crime is not completed or if the intended result does not occur(Article 25 (1)). The punishment for attempted crimes shall be specifically provided in each Article concerned(Article 29). Punishment is often less severe than would be the case if the attempted crime had been carried out. The type of an attempted crime of consequentially aggravated crime can be accepted as the case that basic crime merely extended to the stage of an attempted crime but has finally caused heavy effects. The attempt of robbery resulting in a bodily injury, as the combined crime in this study, depends on whether the result of a bodily injury occurs or not. When a completed robber causes no bodily injury, the robber is responsible for attempt of robbery resulting in a bodily injury. By contrast, when an attempted robber causes a bodily injury, the robber is responsible for completion of robbery resulting in a bodily injury under korean legal precedent. It is needed to revise the regulations of consequentially aggravated and combined crimes, which their legislation is defective in unity. For this reason, this study is straight on the problem from the lack of legislative unity to the legal provisions of consequently aggravated and combined crimes under The Korean Criminal Code.