폭행·협박 후 불법영득의사에 의한 재물취득과 강도죄 성립 여부 (The Completion of Robbery and the Willingness to Acquire Property after The Assault and Intimidation)

서지정보

· 발행기관 : 충북대학교 법학연구소
· 수록지 정보 : 법학연구 / 27권 / 2호 / 175 ~ 209페이지
· 저자명 : 최대호

초록

This article studied whether the robbery completes or not in the willingness to acquire property after the assault and intimidation. For example, the acquisition of property from a person who had been fainted by violence for the purpose of rape was not considered to be intensified The judgment of germany suggested the possibility of the formation of a robbery crime by inaction of omission. Nevertheless, we can not overlook the fact that this decision and the subsequent theory are trying to impose certain constraints on the scope of this formation. However, there is a doubt that the book judgment and theory sufficiently base that constraint. This judgment shows briefly the reasons for adopting the positive theory. However, as far as this issue is concerned, it can be said that the argument theory does not provide sufficient arguments.
Meanwhile, in Japan it was suggested that constitution of beating omission and in the case like this case, the opinion which approves the formation of the crime of burglary was once claimed. However, at present it is almost impossible to positively adopt such views, and the discussion is not very active. In such circumstances, judgment is shown as if it approved the formation of a burglary by inattentive assault in the recent high court precedent. Today, learning from German court cases and theories on the possibility of the robbery crime by assault of inaction seems to be beneficial in light of this situation in Japan.
In the German debate, whether the concept of assault included the 'result' element was dividing whether the omission of assault was positive or negative. This seems to be valid for our country as well. It is common in Japan to regard omission as 'not doing the expected act'. In cases like this case, if we are to expect acts, we will eliminate the state of resistance against rebellion. And you can grasp that you did not do this as omission.
Therefore, as a premise assuming omission here, it is necessary to take into account the rebound suppression pressure state. In addition, the opportunity to include inclusion in the 'assault' of inactions of unrestricted pressure condition is considered to be 'result' of this rebellion suppression state. It can be said that the assault of the omission which can be thought here is that "I should not have tried to resolve (rebound against the property) pressure state".
The attitudes contrary to this obligation In order to be able to call "violence" in robber crimes, this obligation must be derived from the provision of robbery crime. In other words, it must contain the content that the provision of burglary charges should not cause a "result" of pressure resistance state. In this way, for the first time, it is understood that the robbery crime includes "the result" of pressure resistance state, it is possible for inclusion in the "robbery" of robbery crime the unresolved state of rebellion suppression state.

영어초록

This article studied whether the robbery completes or not in the willingness to acquire property after the assault and intimidation. For example, the acquisition of property from a person who had been fainted by violence for the purpose of rape was not considered to be intensified The judgment of germany suggested the possibility of the formation of a robbery crime by inaction of omission. Nevertheless, we can not overlook the fact that this decision and the subsequent theory are trying to impose certain constraints on the scope of this formation. However, there is a doubt that the book judgment and theory sufficiently base that constraint. This judgment shows briefly the reasons for adopting the positive theory. However, as far as this issue is concerned, it can be said that the argument theory does not provide sufficient arguments.
Meanwhile, in Japan it was suggested that constitution of beating omission and in the case like this case, the opinion which approves the formation of the crime of burglary was once claimed. However, at present it is almost impossible to positively adopt such views, and the discussion is not very active. In such circumstances, judgment is shown as if it approved the formation of a burglary by inattentive assault in the recent high court precedent. Today, learning from German court cases and theories on the possibility of the robbery crime by assault of inaction seems to be beneficial in light of this situation in Japan.
In the German debate, whether the concept of assault included the 'result' element was dividing whether the omission of assault was positive or negative. This seems to be valid for our country as well. It is common in Japan to regard omission as 'not doing the expected act'. In cases like this case, if we are to expect acts, we will eliminate the state of resistance against rebellion. And you can grasp that you did not do this as omission.
Therefore, as a premise assuming omission here, it is necessary to take into account the rebound suppression pressure state. In addition, the opportunity to include inclusion in the 'assault' of inactions of unrestricted pressure condition is considered to be 'result' of this rebellion suppression state. It can be said that the assault of the omission which can be thought here is that "I should not have tried to resolve (rebound against the property) pressure state".
The attitudes contrary to this obligation In order to be able to call "violence" in robber crimes, this obligation must be derived from the provision of robbery crime. In other words, it must contain the content that the provision of burglary charges should not cause a "result" of pressure resistance state. In this way, for the first time, it is understood that the robbery crime includes "the result" of pressure resistance state, it is possible for inclusion in the "robbery" of robbery crime the unresolved state of rebellion suppression state.

참고자료

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