준강도의 처벌범위에 대한 비판적 검토

Abstract

Quasi-robbery is a crime where a thief uses violence or intimidation in order to resist recovery of stolen property, to escape arrest or to obliterate a trace of the crime. In actual quasi-robbery cases, the courts tend to be too quick to find the defendant guilty of quasi robbery, despite the fact that the severity of violence, intimidation or injury in quasi-robbery cases is not as substantial as in other crimes. In addition,the majority of scholars and the Supreme Court hold that since quasi-robbers are punished in accordance with the robbery provision, quasi-robbery should be equated with robbery or special robbery. Based on this interpretation, they go on to construe the Article to mean that the concurrent offence provisions and Erfolgsqualifizierte Delikte (offence aggravated based on the result of the crime) provisions involving robbery should be also applied to quasi robbery, as well as the relevant aggravation provisions in the special acts Even if Article 335 of the Criminal Act could pass the muster of the rule of clarity stemming from the principle of nulla poem sine lege, the above interpretation cannot hold in the face of the very text of the Article. Article 335 stipulates that “a thief who uses violence or intimidation in order to resist recovery of stolen property, to escape arrest or to obliterate a trace of the crime shall be punished in accordance with the preceding two Articles.” Construing this Article in accordance with the theories from Germany or Japan, where the law states that quasi-robbery constitute or be punished as robbery, would be inconsistent with interpretation of Korea’s criminal law. Therefore, even when a quasi-robber injures/kills another person deliberately or by negligence in the course of violence or intimidation, such offender should be punished by concurrently applying the quasi-robbery provision along with the injury/murder provision, or the bodily injury/death by negligence provision. This interpretation will provide the courts with more room to appropriately adjust the level of punishment in accordance with the Sentencing Guideline. Also, depending on the level of sentencing, the courts may be able to suspend execution of the sentence: such possibility will greatly contribute to correcting the problem of unreasonably severe punishments. Although Precedence 1 involved aggravated punishment based on the Special Act, not the Criminal Act, it rightfully refused to equate quasi-robbery with regular or special robbery, thus providing us with a meaningful implication for construing the quasi-robbery provision in the Criminal Act. Precedence 2, on the contrary, held that a quasi-robber who also inflicted bodily injury should be punished for ‘bodily injury resulting from robbery’, following the theory of the majority of scholars and the Supreme Court that quasi-robbery should be equated with robbery or special robbery. Such interpretation cannot escape the criticism that it is inconsistent with the text of Article 335 of the Criminal Act.