구체적 위험범으로서 범인도피죄 (Crime of flying a criminal as Concrete Endangering Offense(konkrete Gefährdungsdelikt))

서지정보

· 발행기관 : 한국형사법학회
· 수록지 정보 : 형사법연구 / 25권 / 1호 / 241 ~ 270페이지
· 저자명 : 김병수

초록

Making use of so called 'pants president' that takes on the role of actual owners to hide them and to receive their punishment for monetary benefits, illegal game rooms are prevalent. And the practice of 'drivers swapped' still has not disappeared that pretender driver delivers himself to police instead of hit-and-run accident driver or drunken driver. False statement is rampant in the course of investigation. In spite of the need to control it in investigation, there are few way to regulate it under current law. There are the obstruction of performance of official duties(the Article 137) and the destroying of evidence(paragraph 1 of the Article 155) etc. in our penal provisions for false statement in the investigative agency, but only crime of flying a criminal(Article 151) could actually be considered. However, because Tatbestand of crime of flying a criminal simply say 'sheltering or flying', the interpretation of the individual case precedents is charged on whether it specifically corresponds to any act. This is the attitude of Supreme Court that considers that the time of consummated crime may be advanced and the possibility of punishment can be expanded when the crime of flying a criminal is regarded as abstract endangering offense like common views. Because the form of abstract endangering offense violates the principle of clarity, the principle of supplementation, Supreme Court would limit the expansion of punishment in the crime of flying a criminal. However, because this attitude of Supreme Court does not represent clear standard of decision, there is the defect of execution that the crime of flying a criminal is not controlled properly.
To solve these problems, there are discussions about the introduction of Obstruction of Justice etc. in U.S.A. But it is difficult to intriduce them for difference of korean system and american system. Actually, as Tatbestand of crime of flying a criminal(Article 151) will be altered from 'man to shelter or fly a criminal' to 'action to shelter or fly a criminal', there is no concern for analogy prohibition and cases are understood with focusing the will of act. We can punish not all testifier's false statements but only intend to be exempted from criminal penalty. Providing the concrete danger as 'danger to obstruct investigation' can give clear standard and limit false statement.

영어초록

Making use of so called 'pants president' that takes on the role of actual owners to hide them and to receive their punishment for monetary benefits, illegal game rooms are prevalent. And the practice of 'drivers swapped' still has not disappeared that pretender driver delivers himself to police instead of hit-and-run accident driver or drunken driver. False statement is rampant in the course of investigation. In spite of the need to control it in investigation, there are few way to regulate it under current law. There are the obstruction of performance of official duties(the Article 137) and the destroying of evidence(paragraph 1 of the Article 155) etc. in our penal provisions for false statement in the investigative agency, but only crime of flying a criminal(Article 151) could actually be considered. However, because Tatbestand of crime of flying a criminal simply say 'sheltering or flying', the interpretation of the individual case precedents is charged on whether it specifically corresponds to any act. This is the attitude of Supreme Court that considers that the time of consummated crime may be advanced and the possibility of punishment can be expanded when the crime of flying a criminal is regarded as abstract endangering offense like common views. Because the form of abstract endangering offense violates the principle of clarity, the principle of supplementation, Supreme Court would limit the expansion of punishment in the crime of flying a criminal. However, because this attitude of Supreme Court does not represent clear standard of decision, there is the defect of execution that the crime of flying a criminal is not controlled properly.
To solve these problems, there are discussions about the introduction of Obstruction of Justice etc. in U.S.A. But it is difficult to intriduce them for difference of korean system and american system. Actually, as Tatbestand of crime of flying a criminal(Article 151) will be altered from 'man to shelter or fly a criminal' to 'action to shelter or fly a criminal', there is no concern for analogy prohibition and cases are understood with focusing the will of act. We can punish not all testifier's false statements but only intend to be exempted from criminal penalty. Providing the concrete danger as 'danger to obstruct investigation' can give clear standard and limit false statement.

참고자료

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