결과적 가중범의 미수에 관한 소고

Abstract

Before describing An attempted crime of Consequentially Aggravated Crime, First, The type of An attempted crime of Consequentially Aggravated Crime should be explicitly established. That is, This type is only limited as one case; Basic crime merely extended to the stage of An attempted crime but has finally caused heavy effects. Second, Two prerequisites should be clearly set; a) The Fulfillment of Immediacy b) The Punishment of Basic Crime. a) The Fulfillment of Immediacy means that The Act-related Consequentially Aggravated Crimes can be contained in arguing An attempted crime of Consequentially Aggravated Crime but The Result-related Consequentially Aggravated Crime should be excluded from debating An attempted crime of Consequentially Aggravated Crime. b) The Punishment of Basic Crime means that if the basic crime is not unpunishable it should be thought that there is not the basic crime. therefore, the general and typical danger which is immediately linked to heavy effects(mostly injury or death) doesn`t exist in the basic crime. After all, 'Unpunishable Basic Crime' - this term represents that the basic crime not actually exist. I have an evident opinion that An attempted crime of Consequentially Aggravated Crime can only be meaningful to the Act-related Consequentially Aggravated Crimes which have the punishable basic crimes. Also, there are usually two theories concerning An attempted crime of Consequentially Aggravated Crime. One is the affirmative view which supports that An attempted crime of Consequentially Aggravated Crime is built, The other is the negative view which denies that An attempted crime of Consequentially Aggravated Crime is built. The negative view is the position which both the Supreme court and most scholars advocate. so to speak, The negative view has been regarded as the majority opinion. so far, they have insisted that all the punishment regulations of An attempted crime regarding Consequentially Aggravated Crime only resulted from legislator's mistakes. Considering the substance of Consequentially Aggravated Crime; In special, Principle of Immediacy, I think that the affirmative view is far more rational than the negative view. In current criminal law, Not only the basis of aggravated punishment but also the extent of aggravated punishment should we consider. In examining our regulations of Consequentially Aggravated Crime, In terms of the sentence, we can notice that the regulations of Consequentially Aggravated Crime are much heavier than those of the Simple Combination Form(a deliberate offense and a criminal negligence) or even the deliberate offense of heavy effects(death or injury). Appropriate reduction of sentences are certainly needed. With the proper revisions, The regulations of Consequentially Aggravated Crime can correspond to the principle of responsibility.