특수폭행죄의 해석에 있어 ‘위험한 물건’의 의미

• 영문명: Meaning of ‘dangerous thing’ for the interpretation of special violence crime
• 발행기관: 한국형사판례연구회
• 저자명: 류부곤(Ryu, Bu– gon)
• 간행물 정보: 『형사판례연구』형사판례연구 제25권, 229~256쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.06.30

영문 초록

The object judgment judges the meaning of the dangerous thing among the requirements that the special crime can be established in criminal law. Specifically, it is whether or not an object used by an actor in an assault situation corresponds to a dangerous thing. The meaning of a dangerous thing that constitutes a special crime is generally explained as having the property that the thing can harm human life or body. The Supreme Court of Korea explains about that: According to a specific matter, when using the object in perspective of social common sense, it is important to judge whether is the thing that can be recognized as dangerous by the victim or the third person. However, the results of actual judgments by the Supreme Court have many questions in terms of the specificity of interpretation and ensuring of predictability. And the objectivity of judgment criteria for dangerous objects is doubtful. Through the process of discussing the meaning of danger as a constituent of crime and the basis of illegal punishment of special crime, this article studies the meaning of dangerous things, which is a requirement for special crimes. As a result, this article sees the freedom of the victim’s will to escape the crime as a protection against special crimes under criminal law, suggests that the possibility of overcoming the resistance of the victim is the criterion for judging the danger of the object. Accordingly, when an actor carried an object in a crime, whether the thing is a dangerous thing is assessed by the following criteria : Whether it is possible for the general assessment of the fact that the object normally provides the actor with an absolute advantage of strength and makes the victim aware of the difficulty of defending.

목차

[대상판결] 대법원 2014. 6. 12. 선고 2014도1894 판결

[참조판례 1] 대법원 2010. 4. 29. 선고 2010도930 판결

[참조판례 2] 대법원 2009. 3. 26. 선고 2007도3520 판결

[연구]

Ⅰ. 문제의 제기

Ⅱ. 형법적 위험개념과 물건의 속성으로서의 위험성

Ⅲ. ‘특수’범죄에 있어서 위험한 물건의 의미에 대한 구체적 판단

Ⅳ. 대상판결에 대한 평가

키워드

위험한 물건 특수폭행죄 위험판단 가중처벌 성공가능성 dangerous thing special violence crime assessment of danger aggravated punishment possibility of success