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논문 기본 정보

자료유형
학술저널
저자정보
저널정보
중앙법학회 중앙법학 중앙법학 제9집 제3호
발행연도
2007.10
수록면
221 - 242 (22page)

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초록· 키워드

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The criminal law provides punishable styles of crimes. So I think that ``futile attempt exempted from punishment` without dangerousness is not inc1uded in article 27. Consequently I assure that "the futile attempt" on article 27 means ``an punishable futile attempt`` with dangerousness. And starts of commissions of all punishable criminal acts inc1uding the punishment ground of an attempted crime are the expressions of hostile wills to the law, and so they contain dangerousness to disturb general person`s truth within the force of the law. I think that it is good to consider the mark of the dangerousness of the futile attempt on artic1e 27 as the dangerousness as the punishment ground of an attempted crime, not as an independent mark. Because the essence of the futile attempt lies in a point which a1though an occurrence of result is impossib1e at first, due to his mistake about the means or object of commission, an doer does not recognize the fact that the result occurrence is possible, and so advances to an commission. In distinguishing between the futile attempt and the obstacle attempt, it has to be preceded to judge which the result occurrence was possible or impossible primarily. And then if the result occurrence is impossible and there is possibility of a mistake to doer when he acts, it is to be the futile attempt. In this case, the reduction or the exemption of punishment must be judged by degree of mistake. In the other hand, I think that if generally the result occurrence is not due to a situation enough to cause a mistake, the doe r is not punished. Because his act is due to his distinguished ignorance and so is not dangerous. But I think that in the case that the result occurrence is possible primarily, except for the abandonment of the attempt to commit an offence on artic1e 26, anything is included in the extent of the narrow sense of obstac1e attempt on artic le 25. That is, it is the material sense of the abandonment of the attempt to commit an offence that it is possible to the occurrence of a result but a deer is not able to compete crime in spite of his beard. Consequently, artic1e 27 has to be reformed as follows. At first its title has to be changed to 「the futile attempt」. Second, its contents has to be changed to "In the case that a doer started to commit a criminal act without recognizing the impossibility of the result occurrence due to his mistake about the means or object he is been able to reduce or exempt from punishment."

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