강도죄에 관한 연구

Abstract

According to the law in force, the object of robbery is gain from fortune excluding property. Due to this, robbery is not crime on ownership that is under the benefit and protection of the law for ownership. but crime on fortune that is under the benefit and protection of the law for fortune. Acquisition of gain from fortune requires other's disposition, but victim cannot perform disposition in condition of robbery that oppresses victim's opinion not to resist by violence or threat. So, the performer cannot have gain from fortune. In case of murdering creditor for waiver of an obligation, Realization of robbery and murder or robbery according to existence of successor is not agreed as it is contrary to the definitude the principle of legality and it harms legal stability. And as real estate, whether it is included in property or gain from fortune, is acquired by disposition, it cannot be the object of robbery. Another reason that gain from fortune cannot be robbery is that it should be distinguished from crime of blackmail. Acquisition of gain from fortune should not extend to the degree of oppression victim's opinion. So to speak, violence or threat of robbery should be not distinguishable from that of blackmailing. Because if violence or threat does not extent to the degree that victim is impossible to resist. robbery does not realize. It is reasonable that the object of robbery is only property and the object of blackmailing is gain from fortune. In case of special robbery, though robber's trespass on another's premises on purpose is under part of constitutional action, commence of performance cannot be acknowledged as serious danger was not brought about to ownership directly in that point. So, it should be considered with the commence period of performance, and point of step to violence and threat in special robbery. As it can be the point of direct performance that realizes the constitutional condition that recognize the commence of performance in step to violence and threat. and in that point, serious danger seems to be bring about directly to ownership that commence of performance is recognized. Above judgement of the Supreme Court is significant that it suggested definite standard in commence point of performance of special robbery including night housebreaking robbery. But, it seems to make light of basic constitutional condition of robbery comparatively, by emphasizing the balance with similar constitutional condition of night housebreaking robbery. Next, semi-robbery is independent crime that is similar to robbery. And as sentence for semi-robbery is same as that of robbery , it is indirect evidence that legislator regards illegality and charge of both constitutional condition as same. So, it is reasonable that theft, the subject of semi-robbery includes the attempted theft. Considering that it is an independent crime, with characteristic of semi-robbery, scope of robbery as subject, and violence and threat as performance of the constitutional condition, it is true that semi-robbery and robbery have common constitutional condition of objective commitment of violence and threat to steal property. But time order of violence & threat and stealing distinguish them and constitution of performance should be recognized as different . Because, the purpose of exemption of arrest and destroying evidences of crime shows this. And it is principle to decide of performance and attempting of semi-robbery according to performance and attempting of violence and threat of robber. And there is no reason to break this principle. So it is reasonable to decide the performance or attempting according to standard of violence and threat like preceding case and contrary concept rather than requiring performance for all regardless of robbery, violence and threat.