상상적 경합의 유형, 효과에 대한 재검토와 형법 제40조의 입법론

Compound Crimes in Korea: Sorts, Effect, and Reform Suggestion of Art. 40 of Criminal Code

This paper explores the Sorts and Effect of Compound Crimes in Korean Criminal Code, and suggests a reform bill of Art. 40 of Criminal Code. Article 40 (Compound Crimes) of the Korean Criminal Code provides that "When a single act constitutes several crimes, punishment provided for the most severe crime shall be imposed." According to this provision number of crimes committed by a single act is punished only by the most severe punishment. This result is sometimes unsatisfactory, when the committed crimes have nothing in common and the interests inflicted belong to different individuals. In this case it would be regarded as appropriate and just to enhance the maximum punishment to the extent that Art. 38 (concurrent crimes) would apply to. In addition, there has been a controversy over the treatment of so called the compound crime through a connecting crime, which involves a question whether it is proper to punish as a compound crime when two different crimes become a compound crime with help of a third connecting act. The so far suggested solutions vary from the a denial of a compound crime to partial acceptance with many variations of theories. On this problem this paper suggests that although a compound crime should recognised like the decision of the Supreme Court of Korea, its punishment, however, should be aggravated. A revised bill to this provision is proposed.