준강도죄와 준특수강도죄의 구별 기준

Quasi robbery is punishable in accordance with robbery in that the structure of the illegality is different from that of robbery, but the degree of the illegality can be assessed as the same. Among the cases where the crime of quasi robbery is established, it should be punished as quasi felony robbery only if the degree of illegality can be assessed as the same as that of felony robbery, otherwise it should be punished as quasi robbery. In the case of quasi robbery, the subject of the offence is ‘theft’ and the essential act is ‘assault and intimidation’. Although the subject matter of quasi robbery is limited to ‘theft’, quasi robbery cannot be regarded as a status offence in that theft cannot be regarded as a status in social life or as an exclusive characteristic of the actor. The commencement of the commission of the offence of quasi robbery is to be regarded as the commencement of the act of assault and intimidation, which is an essential element. The distinction between the commission and attempt of the offence of quasi robbery should be determined by the termination of the essential act of assault or intimidation, but if it is based solely on the act of assault or intimidation, an imbalance in the relationship with the offence of robbery will occur, so the combined theory, which recognizes the commission of quasi robbery even if the act of theft is only an attempt, is appropriate. There is a view that distinguishes between quasi robbery and quasi felony robbery according to the type of the theft, but this is different from the attitude of the case law. It is not consistent with the principle of liability to consider the entire offence as felony robbery merely because the circumstances of breaking into a dwelling at night with the intention of stealing existed before the burglary was discovered. Distinguishing between ordinary robbery and felony robbery based on the type of the offence would defeat the purpose of aggravating the offence of nighttime residential burglary. The distinction between ordinary robbery and felony robbery based on the type of the act of assault or intimidation is also justified by the fact that the commencement of the act of ordinary robbery is considered to be the time when the assault or intimidation is initiated. Consequently, the distinction between ordinary robbery and felony robbery based on the time of the assault or threat should be maintained in cases of ordinary robbery committed by carrying a weapon and felony robbery committed by breaking into a dwelling at night or jointly committing ordinary robbery.