형법 제56조의 관점에서 본 연결효과에 의한 상상적 경합

Ideal concurrence of crimes by connection effect(‘the connection effect theory’) emerged to prevent double evaluation of an act. However the overall acknowledge of the connection effect theory gives unfair benefits to the actor who should be punished with aggravated punishment for real concurrence of crimes, and the restrictive acknowledge of the connection effect theory still leaves an area where the act doubly evaluated. The method of treating concurrent crimes before ideal concurrent crimes can solve the problem of double evaluation of an act and the difficulties in the connection effect theory, but changing the order of statute application in this way is not allowed under our criminal law. This is because by synthesizing the interpretations of Articles 40 and 35, focusing on the words of Article 56 of the Criminal Act, we can check the following order of statute application: the handling of ideal concurrent crimes, the selection of punishment, and the aggravation for concurrent crimes. In order to more accurately look at the meaning of the cases in which the connection effect is at issue under our criminal law, it is necessary to change the way of thinking and approach it from the perspective of the order of statute application. At the center of the new perspective is Article 56 of the Criminal Act. The ‘punishment’ in Article 40 of the Criminal Act means a statutory penalty, and the ‘punishment provided for such crime’ in Article 35(2) of the Criminal Act means a optional penalty. From this, it can be inferred that there is a selection fo punishment between the handling of ideal concurrent crimes and the aggravation for concurrent crimes. In accordance with Article 56 of the Criminal Act, the aggravation for concurrent crimes is handled after the aggravation for concurrent crimes. Therefore, from the perspective of the order of statute application, it can be seen that there is no situation itself in which the absorption principle for ideal concurrence of crimes and the aggravation principle for real concurrence of crimes compete under our criminal law. Due to the provisions of Article 56 of the Criminal Act, the cases in which the connection effect is at issue are naturally resolved. In this sense, it is difficult to say that the connection effect theory is necessary under our criminal law. The Supreme Court's judgments on the cases in which the connection effect is at issue seems to have recognized the connection effect, but the judgments should be seen as the results of the Supreme Court's application of statutes in the order of statute application. To what extent the court evaluates certain actions as a single act eventually affects the punishment of the actor. Even if the connection effect theory is not harmonized with the attitude of our criminal law, this theory may remind us that the court should be more careful not to unfairly advantage or disadvantage an actor when evaluating the number of acts. The significance of the connection effect theory in our criminal law can be found here.