형법상 모살·고살 구분과 영미형법의 살인죄
Reform of Homicide Offence in Anglo-American Criminal Law
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This research studies the common law model of homicide offence and the reform of homicide law in Korea. Korean Criminal Code knows no distinction of murder and manslaughter, as such in common law tradition. According to the section 250 of the Code, judge has discretionary power to impose from suspended sentence to death penalty. As a way of rationalization of criminal law, it has been proposed that single offence of homicide should be separated into the offences of murder and manslaughter. According to the Model Penal Code, criminal homicide is murder, manslaughter or negligent homicide. When homicide is committed purposely or knowingly, or recklessly with extreme indifference to the value of human life, is constitutes murder. When committed recklessly, or with diminished responsibility, it constitutes manslaughter. In English criminal law, murder is defined as the unlawful killing of a human being with malice aforethought. Voluntary manslaughter means that the accused had mens rea of murder, but has a defence. Involuntary manslaughter has two forms of gross negligence and constructive manslaughter. In common law tradition, the structure of murder/manslaughter was influenced by the decision to separate capital murders from non-capital murders. It has been developed to give more discretion to judges, who impose sentences to the offence of homicide. For the rationalization of sentencing discretion, and for the abolishment of death penalty, reform of homicide offence in the American and English criminal laws should be studied.
Abstract
This research studies the common law model of homicide offence and the reform of homicide law in Korea. Korean Criminal Code knows no distinction of murder and manslaughter, as such in common law tradition. According to the section 250 of the Code, judge has discretionary power to impose from suspended sentence to death penalty. As a way of rationalization of criminal law, it has been proposed that single offence of homicide should be separated into the offences of murder and manslaughter. According to the Model Penal Code, criminal homicide is murder, manslaughter or negligent homicide. When homicide is committed purposely or knowingly, or recklessly with extreme indifference to the value of human life, is constitutes murder. When committed recklessly, or with diminished responsibility, it constitutes manslaughter. In English criminal law, murder is defined as the unlawful killing of a human being with malice aforethought. Voluntary manslaughter means that the accused had mens rea of murder, but has a defence. Involuntary manslaughter has two forms of gross negligence and constructive manslaughter. In common law tradition, the structure of murder/manslaughter was influenced by the decision to separate capital murders from non-capital murders. It has been developed to give more discretion to judges, who impose sentences to the offence of homicide. For the rationalization of sentencing discretion, and for the abolishment of death penalty, reform of homicide offence in the American and English criminal laws should be studied.
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