불능미수범의 위험성 (Dangerousness of Impossible Crime)

서지정보

· 발행기관 : 원광대학교 법학연구소
· 수록지 정보 : 원광법학 / 30권 / 4호 / 93 ~ 122페이지
· 저자명 : 윤상민

초록

Article 27(Impossible Crime) of Korean Criminal Code provides, Even though the occurrence of a crime is impossible because of the means adopted for the commission of the crime or because of mistake of objects, the punishment shall be imposed if there has been a resulting danger, but the punishment may be mitigated or remitted.
There have been many controversies over whether or not Article 27 should contain the concept of danger.
Recently, there have been some arguments that the concept of danger in Article 27 does not have any particular meaning in defining impossible attempted crimes. People with this view said that all attempted crimes involve danger.
They also insisted that danger of impossible attempted crimes does not differ from that of other attempted crimes, and that the “Eindruckstheorie”, which defines danger as disturbing the stability of legal order thereby causing trust deficit in the law, can explain this danger.
There are many theories to define the dangerousness in Article 27. In them, the concrete danger theory and the abstract danger theory are thought to be the two most proper theories in interpreting Article 27. According to the concrete theory, a case for impossibility crimes is formed only when the conducts involve concrete danger.
The abstract danger theory, however, explains that even if there is only an abstract danger in a person’s behavior, there is a case for impossibility crimes. In my opinion, the abstract danger theory is much more reasonable in that it puts more importance on the intention and the awareness of the criminal himself. According to the results, it is reasonable abstract danger theory.

영어초록

Article 27(Impossible Crime) of Korean Criminal Code provides, Even though the occurrence of a crime is impossible because of the means adopted for the commission of the crime or because of mistake of objects, the punishment shall be imposed if there has been a resulting danger, but the punishment may be mitigated or remitted.
There have been many controversies over whether or not Article 27 should contain the concept of danger.
Recently, there have been some arguments that the concept of danger in Article 27 does not have any particular meaning in defining impossible attempted crimes. People with this view said that all attempted crimes involve danger.
They also insisted that danger of impossible attempted crimes does not differ from that of other attempted crimes, and that the “Eindruckstheorie”, which defines danger as disturbing the stability of legal order thereby causing trust deficit in the law, can explain this danger.
There are many theories to define the dangerousness in Article 27. In them, the concrete danger theory and the abstract danger theory are thought to be the two most proper theories in interpreting Article 27. According to the concrete theory, a case for impossibility crimes is formed only when the conducts involve concrete danger.
The abstract danger theory, however, explains that even if there is only an abstract danger in a person’s behavior, there is a case for impossibility crimes. In my opinion, the abstract danger theory is much more reasonable in that it puts more importance on the intention and the awareness of the criminal himself. According to the results, it is reasonable abstract danger theory.

참고자료

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