중지미수의 결과발생과 중지범에 대한 올바른 해석방향의 정립

Abstract

Attempt is crime which is a very exceptional form of crime punished by criminal law. This is due to the criminal law is based on the principle of punishment that is appeared to the outside as both confirmed opposition value of the act and the confirmed opposition value of the result. Attempt has confirmed opposition value of the act but has no confirmed opposition value of the result. Among the attempt, especially, voluntarily ceased attempt is so difficult and complex in the process of interpretation in the case of the outcome of offense that we don’t decide logical interpretation easily. The cause is due to exceptional case is happen. In other words, criminal law have to interpret as commission of full offense because the outcome of crime has already occurred. This means that both confirmed opposition value of the act and the confirmed opposition value of the result have all occurred. However, there is case which criminal law as voluntarily ceased attempt even though the outcome has already occurred. How do we see the contradictory direction of these criminal law? I think we should find a logical basis in the direction of interpretation as follows : First, basically, the formation of offense has already been decided at the offense act time and circumstances which occur after offense act do not affect already completed offense in any case. This means that voluntarily ceased attempt of general intention offense has already been completed as commission of full offense at the time when crime act start. Therefore, benefits as a voluntarily ceased attempt should be granted after step, formation of offense. This means that criminal law only have to evaluate above case as personal punishment mitigation or release reason considering spontaneity. Second, voluntarily ceased attempt of offense aggravated by consequence that has already produced consequences have to be interpreted as two cases. One is basic crime only ends with the unfinished attempt and the other is basic crime ends with the finished attempt. In case of unfinished attempt, doer has not finished the act yet. Therefore, this case can be interpreted as incomplete crime. This means that criminal law can interpret this case as both personal punishment mitigation or release reason and changeable determination of punishment offense considering spontaneity. However, in case of finished attempt, benefits as a voluntarily ceased attempt only should be granted as personal punishment mitigation or release reason like general attempt. Lastly, voluntarily ceased attempt of unauthentic omission offense that has already produced consequences can be interpreted as both attempt and personal punishment mitigation or release reason considering spontaneity if we take a few criticisms. Also, it is possible for criminal law to give voluntarily ceased attempt doer benefits as evaluation of the changeable determination of punishment offense after securing basic determination of punishment offense because target case is the unfinished attempt.