결과적 가중범의 미수

Abstract

The consequently aggravated crime is recognized as an effective means to prevent crime, but punishment becomes too harsh just because of a serious result. To solve this problem, theories and precedents introduced requirements such as the principle of causality, predictability, and directivity. However, these requirements alone are not sufficient. The significant disadvantages of the consequently aggravated crime must be controlled, by seeking the possibility of an criminal attempt of consequently aggravated crime. There have been many theoretical discussions on whether or not the criminal attempt of consequently aggravated crime could be accepted. But they were not sufficient to cover theories, precedents, and provisions. Therefore, this paper comprehensively reviewed theories, precedents, and provisions, and analyzed whether or not the criminal attempt of consequently aggravated criminal could be accepted, by categorizing the provisions regarding consequently aggravated crime in The Korean Criminal Code. In the case of a true consequently aggravated crime, the criminal attempt could only be recognized when the basic crime includes the criminal attempt or could be interpreted as such, and there exists a provision for the punishment of the criminal attempt of consequently aggravated crime. If it cannot be considered that an criminal attempt is included in the basic crime of the consequently aggravated crime, the possibility of establishing the consequently aggravated criminal is denied, and only the concurrence of offences between the basic crime and the serious result could be accepted. The Supreme Court of Korea is in the same position. Therefore, it is wrong to argue that consummation of the consequently aggravated crime is recognized as long as a serious result occurs, even if a basic crime is not completed. In the criminal law, the criminal attempt of a consequently aggravated crime is recognized in the case of violation of the Article 337 and 338 of The Korean Criminal Code, and the difference in the resulting illegality can be reflected by recognizing the criminal attempt of the consequently aggravated crime, in favor of the defendant. On the other hand, in the case where the structure of the article is same as the Article 301 and 301-2 of The Korean Criminal Code, it seems difficult to recognize the criminal attempt, but the circumstances that basic crime has only been attempted should be actively reflected in the sentence. In the long run, the law should be revised to make it possible to recognize the criminal attempt. In the case of untrue consequently aggravated crime, the possibility of criminal attempt should be left open in theory. However, if criminal attempt in the violation of the Article 177 (2) of The Korean Criminal Code is recognized, there appears a contradiction in the evaluation of crime, because the punishment is lower than that of concurrence of offences between a basic crime and a serious result. So, concurrence of offences between crimes should be recognized.