결합범과 신분범, 실행의 착수시기

Abstract

The target ruling determines that the crime of home invasion rape is a status crime and the starting point of its execution is the point of assault and threat for rape, which is a subsequent act.
 However, as seen earlier, in a combined crime, the preceding act is an ‘act’-related element as the first act, and together with the subsequent act, which is the second act, it forms one constituent element as a whole. Therefore, the attitude of the precedent that ‘act’-related prior acts act as status elements is not considered to be a conclusion faithful to the concept of status.
 In addition, if the crime of home invasion rape is a combined crime, it is reasonable to view the start of execution as the time when the home invasion began.
 Since the appellate court ruled that “the defendant appears to have already intended to commit sexual crimes such as pseudo-rape against the victim when he dragged her into the bathroom,” the intention for the crime of home invasion-like rape was committed from the beginning - that is, the first act, home invasion. The appellate court also acknowledged that there was intent to commit sexual assault and intent to commit pseudo-rape, which was the second act. Nevertheless, the appellate court judged that the starting point of execution was not the first act, the time of intrusion into a home (the point of dragging someone to the bathroom), but the second act, the moment of attempted pseudo-rape (the point of assault and threats), which means that the point of execution in a combined crime is There appears to be a lack of consistency in judgment regarding launch. Why did the precedent take this attitude? When the crime of home invasion rape is considered a combined crime, it can be understood that although it is logical that the starting point of its execution is a preceding act, the logical contra- diction of viewing it as a subsequent act is an attempt to overcome the contradiction by viewing the preceding act as a status element. Of course, from a macro perspective, it is more advantageous for the defendant to set the starting point of execution on the subsequent act rather than the preceding act. In addition, viewing a criminal as a status criminal rather than a non-status criminal requires a judgment on the presence or absence of a status criminal, so it is inevitably a judgment that is more favorable to the defendant. From the defendant's perspective, he or she can claim that he or she has no status, and even if he or she does have status - even if the home invasion has been completed - he or she can claim that he or she has not yet begun the act.
 Meanwhile, in the target ruling, the court may be seen as implying that it is different from the original status crime by expressing it as “a type of identity crime…” However, in the reference case, it is said to be a type of identity crime, but mentions the possibility of establishing an accomplice under Article 33. Therefore, we cannot help but say that the type of identity crime expressed in precedents is in fact the same as “identity crime.” And the use of such ambiguous terms can add to the complexity of interpretation theory due to the ambiguity. I believe that clarifying whether or not a person is a status offender is consistent with the principle of clarity and can prevent confusion between theory and practice.