논문 상세보기
특수폭행죄의 해석에 있어 ‘위험한 물건’의 의미 KCI 등재
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.
[연 구]
Ⅰ. 문제의 제기
Ⅱ. 형법적 위험개념과 물건의 속성으로서의 위험성
1. 위험개념에 대한 논의필요성
2. 형법적 위험개념의 실체에 대한 논의
Ⅲ. ‘특수’범죄에 있어서 위험한 물건의 의미에 대한 구체적 판단
1. 특수폭행죄의 가중처벌의 근거
2. 학설에 의해 시도된 구체화 논의와 평가
3. ‘특수’범죄의 보호법익에 따른 위험성의 구체화 시도
Ⅳ. 대상판결에 대한 평가
[참고문헌]
[Abstract]
