야간주거침입강도죄의 구조와 실행의 착수시기에 대한 비판적 검토

Abstract

The korean criminal code §§334(1) are prescribed that a person who has trespassed at night and committed the robbery shall be punished by life imprisonment or by more than 5 year’s imprisonment. Recently, the commencement of commission of robbery of trespassing upon residence at night is disputable. Some argue that commencement of its commission is when an area of land and home that belongs to someone else is entered by someone with intent of robbery, some argue that commencement of its commission is when the force or the threat of immediate force are presented by someone trespassing upon residence at night. It is very important, how is understood the commencement of commission of robbery trespassing upon residence at night, because its scope are different, according to that. For example, its scope are more broad in case of the theory of trespassing upon residence than in case of the theory of force and threat. Of course, the opinion of majority and court is when the force or the threat of immediate force are presented by someone trespassing upon residence at night. The ground of disputable may be that we will understand commencement of its commission not according to the system of commencement of commission of robbery trespassing upon residence at night, but according to nature of robbery trespassing upon residence at night as combination crime, its character as robbery or benefit and protection of law of combination crime of robbery trespassing upon residence at night. The majority of scholars support the opinion of force and threat, the minority of them support the opinion of trespassing upon residence. And some people understand the 1st act of combination crime as commencement of commission of robbery of trespassing upon residence at night in case of supporting the combination crime, some people understand the 2nd act of combination as commencement of its commission in case of supporting its benefit and protection of law. When we reviewed this different result, we can result in that the result itself is wrong or its reasoning is wrong. Someone who will understand commencement of commission of robbery trespassing upon residence at night in respect of its character support the opinion of force and threat. We try to know the commencement of commission of robbery of tres- passing upon residence at night. If it is so, we have to understand the standard of deciding the commencement of commission of crime. However, until now, there have been many effort, to be studied commencement of its commission by the standard unrelated to the standard of commencement of commission of robbery of trespassing upon residence at night, for example, related to structure of combination crime of robbery trespassing upon residence at night, its character as robbery, and its benefit and protection of law. Even if until now, the definition of commencement of commission of crime have continuously been changed, nowadays the subjective-objective opinion as the eclectic opinion is supported by the opinion of majority and court. According to the eclectic opinion, the commencement of commission of crime is defined as when some or all act of constitution are commenced by the plan of crime actor. If the definition of commencement of commission of crime shall be applied to the structure of robbery trespassing upon residence at night, the commencement of commission of robbery trespassing upon residence at night is defined as when an area of land and home that belongs to someone else is entered by someone with intent of robbery. This is coinciding with the structure of commencement of commission of crime and requisite for robbery trespassing at night.