결과적 가중범의 중지미수에 관한 새로운 해석론의 전개

This study is about voluntarily ceased attempt of offense aggravated by consequence. The summary of this study is as follows : First of all, offense aggravated by consequence is an independent form of crime in which independent illegality is expressed under criminal law. In other words, it is not just a combination of basic offense and serious consequence. The basic offense of offense aggravated by consequence is a form of crime that is tightly bound to serious consequence as single constituent elements of offense by the principle of directness. And these basic offenses consist only of crimes of a certain natures that may result in injury or death. Namely, no every crime can be a basic offense of offense aggravated by consequence. Offense aggravated by consequence means that the illegality and responsibility of the entire offense already are completed at the completion of the action of begin of the basic offense. In relation to voluntarily ceased attempt, an attempt of criminal law is a legislative concept that was artificially created to give the actor the benefit of punishment after both illegal and liability evaluation was completed. Therefore, even if there is no illegality against consequence the offense already should be considered to have been completed because illegality against act came to a maximum at the time of an illegality evaluation. This paper attempts to correctly interpret voluntarily ceased attempt of offense aggravated by consequence by classifying it into four types. Of these four types, decision of commission of full offense or voluntarily ceased attempt of basic offense, or negligence of basic offense is clear if there is not serious consequence, except for unreal offense aggravated by consequence, which is a form of a intentional offense with serious consequence and offense aggravated by consequence which is combined with negligence of basic offense and intentional offense of serious consequence. In addition, in case of serious consequences occur, all four types are treated as the commission of full offense of offense aggravated by consequence, not voluntarily ceased attempt of offense aggravated by consequence. Namely, in order to grant the benefits of voluntary ceased offender of a basic offense, the only way to grant benefits is at the stage after the evaluation of full offense of the offense aggravated by consequence. This is because offense aggravated by consequence who has already been commission of full offense has been completed in terms of illegality and liability evaluation. Consequently, to logically benefit voluntary ceased offender of a basic offense, it is impossible to touch the offense aggravated by consequence which has an independent illegal traits. This leads to the benefit of voluntary ceased offender of a basic offense due to reasons for personal punishment mitigation or release reason, or changeable determination of punishment offense. Finally, it leads to the necessary mitigation or exemption of punishment by consideration in determination of sentence for criminal policy purposes.