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Restrictive interpretation and Application of Endangering Offense Provisions

  • DONG-A LAW REVIEW
  • 2011, (51), pp.103-134
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

TAEMYEONG KIM 1

1전북대학교

Accredited

ABSTRACT

Expressing “the person who causes danger”, Criminal law clearly specifies the fact that if a concrete endangering offense(konkrete Gefährdungsdelikt) endangers the benefit and protection of the law, it should be considered as consummated crime and be punished. However, criminal law does not specify the elements of an offence which show what kind of crime is an abstract endangering offense. In principle, every crime should be considered as depriving offense. If a crime is considered as endangering offense, the crime should be specified concretely. If an exception is needed, the exception should have the enough reason to be accepted and have the rational grounds. Even If so called the cases classified as abstract endangering offenses, such as setting fire to a present living building(Article 164 Clause 1), setting fire to a public structure(Article 165) and setting fire to other building owned by others(Article 166 Clause 1), are considered as depriving offense, there is no matter. It is because the criminal punishment codes includes the punishment for the incomplete attempt, conspiracy and preparation, so that there is no reason to do in view of criminal policy. In other words, arson in Korean criminal law should be interpreted as the meaning that arson is consummated in the case of burning down, contrast to the Germany criminal law in which arson is consummated even in the case of burning partly. Meanwhile, if the criminal law does not provide the punishment to incomplete attempts, such as a failure of dispersion of masses(Article 116), there is some doubt about how to the punish them. But, considering the fact that the crime itself punishes the pre riot(Article 115) stage, to make a clause to punish incomplete attempt on a failure of dispersion of masses means that the clause punishes the stage before prestage. If we see the codes called abstract endangering offense, the codes express that if setting fire causes the arson objects, such as a present living building, a public structure and other building owned by others, to be burned fully, the act is arson. If the arson objects are not burned fully, the act should not be recognized as abstract endangering offense and not be consummated.

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