형법상 미수범 감경규정의 특가법 적용문제 (The issue of applying mitigation on an attempted crime in Criminal Act on ‘Act on the Aggravated Punishment, etc. of Specific Crimes’)

서지정보

· 발행기관 : 한양법학회
· 수록지 정보 : 한양법학 / 24권 / 3호 / 209 ~ 231페이지
· 저자명 : 윤상민

초록

Article 5-4-1 of ‘Act on the Aggravated Punishment, etc. of Specific Crimes’ states that “Any person who habitually commits a crime provided in Article 329 through 331 of the Criminal Act, or attempts to commit the crime, shall be punished by imprisonment for life or by imprisonment for not less than three years”. It regulates that an attempted crime shall be punished with the same statutory punishment on a consummated crime. Because of this regulation, there is an issue whether mitigation regulation on an attempted crime in Criminal Act shall be applied on Article 5-4-1 of ‘Act on the Aggravated Punishment, etc. of Specific Crimes’ or not.
Regarding this, the Supreme Court said in its ruling on March 11th 1986 that “the voluntarily ceased crime regulation in Article 26 of Criminal Act is applied on Article 5-4-1 of Act on the Aggravated Punishment, etc. of Specific Crimes”. As the reason, the Supreme Court said that “Act on the Aggravated Punishment, etc. of Specific Crimes does not have a regulation which explicitly excludes Article 26 of Criminal Act”. Meanwhile, the Supreme Court also said in its ruling on November 25th 2010 that the discretionary mitigation on an attempted crime in Article 25-2 of Criminal Act does not apply on Article 5-4-1 of Act on the Aggravated Punishment, etc. of Specific Crimes”. As the reason, the Supreme Court said that “Article 5-4-1 of Act on the Aggravated Punishment, etc. of Specific Crimes states that statutory punishment on an attempted crime is same with the statutory punishment on a consummated crime”. In addition, the Supreme Court said that “in view of the legislative intention on habitual theft crime, mitigation on an attempted crime in Article 25-2 of Criminal Act does not apply”.
This study compared and analyzed whether mitigation on an attempted crime in the punishment of an attempted crime under Article 5-4-1 of ‘Act on the Aggravated Punishment, etc. of Specific Crimes’ by differentiating the crime ceased by obstacle and voluntarily ceased crime is appropriate or not from the viewpoint of law analysis theory and legislative policy theory. The conclusion is that applying mitigation on an attempted crime in Article 25-2 of Criminal Act is appropriate both from the viewpoints of law analysis theory and legislative policy theory.

영어초록

Article 5-4-1 of ‘Act on the Aggravated Punishment, etc. of Specific Crimes’ states that “Any person who habitually commits a crime provided in Article 329 through 331 of the Criminal Act, or attempts to commit the crime, shall be punished by imprisonment for life or by imprisonment for not less than three years”. It regulates that an attempted crime shall be punished with the same statutory punishment on a consummated crime. Because of this regulation, there is an issue whether mitigation regulation on an attempted crime in Criminal Act shall be applied on Article 5-4-1 of ‘Act on the Aggravated Punishment, etc. of Specific Crimes’ or not.
Regarding this, the Supreme Court said in its ruling on March 11th 1986 that “the voluntarily ceased crime regulation in Article 26 of Criminal Act is applied on Article 5-4-1 of Act on the Aggravated Punishment, etc. of Specific Crimes”. As the reason, the Supreme Court said that “Act on the Aggravated Punishment, etc. of Specific Crimes does not have a regulation which explicitly excludes Article 26 of Criminal Act”. Meanwhile, the Supreme Court also said in its ruling on November 25th 2010 that the discretionary mitigation on an attempted crime in Article 25-2 of Criminal Act does not apply on Article 5-4-1 of Act on the Aggravated Punishment, etc. of Specific Crimes”. As the reason, the Supreme Court said that “Article 5-4-1 of Act on the Aggravated Punishment, etc. of Specific Crimes states that statutory punishment on an attempted crime is same with the statutory punishment on a consummated crime”. In addition, the Supreme Court said that “in view of the legislative intention on habitual theft crime, mitigation on an attempted crime in Article 25-2 of Criminal Act does not apply”.
This study compared and analyzed whether mitigation on an attempted crime in the punishment of an attempted crime under Article 5-4-1 of ‘Act on the Aggravated Punishment, etc. of Specific Crimes’ by differentiating the crime ceased by obstacle and voluntarily ceased crime is appropriate or not from the viewpoint of law analysis theory and legislative policy theory. The conclusion is that applying mitigation on an attempted crime in Article 25-2 of Criminal Act is appropriate both from the viewpoints of law analysis theory and legislative policy theory.

참고자료

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