연속범에 대한 판례의 입장과 이에 대한 검토

Abstract

The Supreme Court generally affirms the establishment of a single inclusive crime for serial offenders that satisfy ① unity of legal interest, ② unity or continuity of crime intention, and ③ uniformity of crime patterns. Since ‘the act of purchasing goods with a stolen credit card and the act of receiving cash advance from an ATM’ are different crimes, even if they are continuously committed with the same credit card, it is not a comprehensive crime of violating the Specialized Credit Financial Business Act. Although the precedent basically regards serial offences as comprehensive single crimes, it is judged that a separate crime is established when faced with a specific case that is ambiguous to be judged as a comprehensive single crime. I believe that, while standing on the basis of affirming the inclusiveness of one crime, there are concerns about cases where the illegality of the actor is too great to recognize inclusiveness due to the nature of the crime or the cases that do not conform to the legal opinion. The attitude of precedents does not have a clear standard for the establishment of a single crime, such as failing to provide a consistent standard even within the same crime, there is no consistent standard for the unity of the crime, and requires a certain frequency and scope in terms of temporal and spatial relevance. It is unclear whether trying to narrowly interpret the scope of resilience while revising the jurisprudence of single-inclusive crime against habitual offenders would be part of an effort to narrow the gap, knowing that the recognition of comprehensive single-crime does not conform to the people's legal feelings or common sense. Nevertheless, in serial crimes, such an attempt has not yet been made due to the strong principle of comprehensive one crime. Furthermore, the logic that a final judgment on the same type of crime in the middle of a single inclusive crime separates a single inclusive crime into separate crimes may lead to inconsistency between number of sins under the substantive law and number of sins under the litigation law. There is no reason to regard serial offences as comprehensive single crimes as long as they cause so many problems. As our law deleted the provision that punishes serial offenders as a comprehensive crime, insisting on a single crime is against the intention of the legislator. Serial crimes can be regarded as criminal offenses when judging by the standard theory of components. In other words, each individual act constituting continuous crime is one crime, and the whole is in a substantive competitive relationship as a criminal offense.