중지미수의 자의성 개념의 비결정성 및 그와 결부된 동기(준법의지)와 장애 요소의 역할과 의미

Indeterminacy of voluntariness requirement of a attempt crime and the role and meaning of motive and obstacle factors.

The voluntariness requirement of attempt crime should be considered based on the concept of law-abiding will. The case in question can be determined differently if the general fear of the defendant is taken as his motive of abandonment of criminal attempt. That is, it should not be required that a criminal should come back to the ideal world of ethics on the ground of average citizens’standard. Rather, it is sufficient if a will of law-abiding can be found out although an environment of outside world affects a subjective fear of a criminal. However, the motive of the criminal in the case of question is not surely a single one. There must be multiple motives and also outside environments that affect them. It is not reasonable to think that we have a dichotomical criteria to determine which motive is the best one. It should be a priority to assess a criminal’s motive of law-abiding based on the culpability principle. In addition, the liberal perspective of criminal law for the benefit of criminal defendant should be one of the most important standards.