‘은교’(銀橋)로서의 형법 제26조와 중지미수의 ‘자의성’ 판단 기준

Abstract

Article 26 of the Korean Penal Code articulates “cessation attempt,” providing “When a person voluntarily ceases his criminal act which he began or prevents the result of the culmination thereof, the punishments shall be mitigated or remitted.” In comparison with the other two “attempts” in the Code such as the “obstacle attempt” in Article 25 and the “impossibility attempt” in Article 27, Article 26 endows the defendant with most lenient treatment. There have been debates on the ground of this treatment. Arguments are largely divided into two groups: One is that Article 26 removes or mitigates the illegality or responsibility of the act of cessation, another is that Article 26 provides a gift in sentencing to the defendant although the illegality or responsibility of the defendant’s act is neither removed nor mitigated retroactively. Standing by the latter and critically reviewing the relevant theories in the Korean jurisprudence, the Author argues that Article 26 is a “silver bridge” to induce criminals to get back from illegality to legality. It is not a “golden bridge,” which is a metaphor for the German “cessation attempt” in Article 24 of the German Penal Code. Different from the Korean “cessation attempt”, the German “cessation attempt” provides the defendant with judgement of not-guilty, which is more lenient than the Korean counterpart. With this standpoint, the Author proceeds to argue that the “voluntariness” in Article 26 should be broadly interpreted; the “voluntariness” may be acknowledged even without complete renunciation of the criminal act; it also may be acknowledged when the defendants cease their act for fear of the result of their act.