결과적 가중범의 미수규정에 대한 해석

Abstract

The provisions of Article 15(2) of the Criminal Act already reflect the efforts to overcome the responsibility for the consequences. However, under the perception that the legal penalty of the Erfolgsqualifikation is still high, the effort harmonizing Erfolgsqualifikation with Schuldprinzip is continued still now. Against this backdrop, the study sought to demonstrate the legitimacy and necessity of application of regulation of an attempted of the Erfolgsqualifikation. From the perspective of the principle of non-compliance with Handlungsunwert Erfolgsunwert, it has come to the conclusion that the illegality of Erfolgsqualifikation with basic act of the attempted is different from tillegality of Erfolgsqualifikation with basic act finished. So it is reasonable that the difference is reflected to the Criminal Law. Therefore regulation of attempted of Erfolgsqualifikation must be as appropriate legislation. Therefore, the current regulation of the attempted of Erfolgsqualifikation is not a mistake of legislation, but rather an effort by the legislator to overcome the responsibility of the result and to shape Schuldprinzip. Erfolgsqualifikation is not an arithmetic combination of the results of serious consequences by simple intention and negligence, but rather a criminal form that is aggravated because the typical risk of the basic act was embodied as a serious consequence. In other words in case that the basic act is attempted, a risk caused by the basic act leads to total consequences. But in case that the basic act is completed, a risk completed by the basic act leads to the total consequences. Therefore, the regulation of the attempted of Erfolgsqualifikation is not a legislative error, but the legislative fruits.