법조경합과 포괄일죄의 실체법상 죄수에 관한 판례이론의 분석

A major aspect of this research focuses on analyzing the case law theoryconcerning concurrence of provision and inclusive crime. Various judicial precedentshave been accumulated regarding the two types. The results of this paper analyzingthem show that concurrence of provisions is a single crime in essence and inclusivecrime is several crimes in essence. Because any element of a crime - i.e.,Tatbestand, Rechtswidrigkeit, and Schuld - has a fixed pattern, which cannot besubsumed into the others, this paper asserts that the ‘inclusion’ of the inclusivecrime does not refer to the inclusion of the crime but the inclusion of itspunishment. In the concurrence of provisions, since both the applicable provision andthe provision to be applied are single, the ‘concurrence’ in not a real but animaginary concurrence; in the case of an inclusive crime, the applicable provisionsare several but the provision to be applied is single, and therefore the ‘inclusion’ possesses the meaning of evading the application of the concurrent crimesprovisions. Thus, an inclusive crime is the legal concept of treating several crimesas a single in punishment, which should have been punished as concurrent crimes, sothat it is not a concept belonging to a single crime in essence, but a concept similarto a single crime for purposes of imposition of punishment.