부진정결과적 가중범이 성립하는 경우의 죄수 ― 대법원 1996. 4. 26. 선고 96도485 판결 ―

Abstract

Before the amendment of the Criminal Act in 1995, the Supreme Court recognized that killing an ascendant by setting fire to a present living building constituted a compound crime and ruled that the perpetrator shall be punished for killing an ascendant in accordance with the severity of the statutory penalty. However, after the 1995 amendment of the Criminal Act, the statutory penalty for the two crimes became the same. The Supreme Court now rules that the severity of the punishment shall be determined through the relationship between the intentional crime and the offense aggravated by consequence regarding the severity of consequence. According to this decision, if the statutory penalties for both offenses are the same, then only the offense aggravated by consequence constitutes a crime. The Supreme Court based its decision on the fact that the offense aggravated by consequence is in a special relationship. These precedents raise the question of how the two offenses are related. The lower court decisions on this issue are divided into those that recognize the offenses as a compound crime and punish the offense with a more severe sentence for the killing of an ascendant and those that recognize only the offense of death caused by setting fire to a present living building. The former decision is more valid as the interpretation aligns with the Criminal Act's history and the legislators' intentions. It is difficult to establish a special relationship between death caused by setting fire to a present living building and killing an ascendant. Furthermore, Article 50 (3) of the Korean Criminal Act stipulates that the nature and circumstances of the crime determine the severity of the penalty.