이른바 ‘개괄적 고의’에서 제2행위의 형법적 의미

The concept of dolus generalis applies to a scenario where an offender mistakenly believes that the act constituting the offense has occurred, leading the person to subsequently commit a second act, which resulted in the intended effect of the first act. However, the legal implication of the lack of intent in the second act is a contentious issue, as the intent to commit the offense is absent when the actual offense is committed through the second act. Given the limited discussion on the matter, a reexamination of this longstanding debate is crucial, particularly in relation to the abandonment and concealment of a corpse during the second act. If the outcome of the second act is deemed related to the intent of the first act, then a convincing argument must be presented to establish why the second act should be treated as an impossible attempt. Failing to provide such an argument would render the theory open to criticism for redundant evaluation of the second act. In an effort to address the evaluation dilemma surrounding the second act, which has received relatively little attention in discussions on dolus generalis, this article first explores existing theories on the subject and subsequently examines whether second act can be considered an intentional act. The study concludes that the intent of the first act is disrupted by the occurrence of the second act, so the outcome of the second act cannot be attributed to the intent of the first act. Consequently, it is argued that the second act should be regarded as an independent act, necessitating a separate discussion on the impossibility of an attempt to abandon or conceal a corpse. Conversely, in view of the fact that the intent of the second act is linked to the first act, it is more reasonable to conclude that the crime of abandoning and concealing a corpse is not established.