Murder refers to depriving life from human and making it impossible to be recovered to human again. Especially, the murdering against ascendant(s) or descendant(s) among family members has caused a strong shock and an severe antipathy as a very serious crime in our society.
The ascendant m...
Murder refers to depriving life from human and making it impossible to be recovered to human again. Especially, the murdering against ascendant(s) or descendant(s) among family members has caused a strong shock and an severe antipathy as a very serious crime in our society.
The ascendant murder has been punished as death penalty, life sentence or not less than seven year imprisonment in accordance with Article 250 (2) of the Korean Penal Code. The sentence for parricide murder as an anti-human crime is heavier than ordinary murder sentence.
However, the murders of descendant(s) like their children or grandchildren are usually punished as much as ordinary murder with no separate punishment provision. Moreover, a special case of descendant murder, an infanticide is punished with the penalty reduction provision enacted by Korean Criminal Act. The infanticide crime is applied to Article 251 of the Korean Penal Code only if a lineal ascendant like a parent kills a baby for disgrace and fear or for some extenuating motives while delivering or immediately after delivering.
The ascendant murders are required to be punished with heavier penalty by the current criminal law, regardless of the crime motive they committed. Therefore, the first aim of this paper was to grasp a reason of the inconsistency and to secure a concrete and valid criterion to judge the punishment degree considering crime motives. Thus, it was reviewed whether the punishment ground of the criminal law related to parricide crime was justifiable theoretically or constitutionally to examine an unconstitutionality of the law. And, it is also considered whether the regulation should be revised or abolished in accordance with the current Constitution enacted on base of equality and proportionality principles.
However, the infanticide is perceived as an atrocious crime by ordinary people of current society, who are difficult to understand and accept the fact that the law enacts the penalty reduction for infanticide crime. Therefore, more fundamental reviews are needed to settle down the question and to achieve the rational assertion about reduction provision for the infanticide crime. In particular, it is necessary to examine what is the punishment ground of infanticide crime, and whether the penalty reduction of the crime has an appropriate and specific motive accepted in modern society. Also. it will be investigated about possibility of the legislative amendment for parricide crime as much as the additional penalty for parricide murder.
Descendant murders are penalized with the provision applied for ordinary murders. But, they are differently punished from ascendant murder. If there is no reason for the different punishment, the life of descendant could consider to be relatively undervalued compared with that of ascendant. By any accounts, the current criminal law does not properly reflect the current situation of both the low-birthrate and aging society and particularly the parent duty for babies, infants, children and adolescents.
First of all, the Criminal Law more severely punishes the parricide crime because of immoral motives conducted by lineal descendant. But, when analyzed the actual state of ascendant murder, the ascendant murder crime by immorality only takes up a small proportion of parricide crimes. In this way, parricide crime by mental disorder can be overly and seriously punished despite the lack of immorality. But, the penalty for infanticide crime was set too low for statutory penalty. These facts are contrary to the principles of the Constitution as well as to moral judgment of citizens. That is, it is necessary to propose both the abolishment of the two current provisions and the application of new sentencing standard.
The present parricide crime can be sufficiently solved by considering the sentencing factors provided in the present sentencing standard. But descendant murder crime needs to be compensated with new factor because the action factor of 'descendant victim' is not available. If the 'descendant victim' factor is added to the weighting factors as a special sentencing factor, the resulted sentencing could be balanced with that for ascendant murder. However, it is also suggested that 'spouse victim' factor should be further included as a weighted factor. That is, the spouse murder also could be committed with a immoral cause as like as parricide murder. The spouse murder should be punished by considering the relationship based on a special trust and the spirit of Constitution on family.
In conclusion, murder crimes against linear ancestor and descendant and spouse must be punished more severely than ordinary murder crimes. The related regulations are uniformly requiring the weighted-penalty due to approval a specific position on family, excepting cases that the reason or degree of the crime accusation is so weak. The uniformly application of the weighted penalty can not ask for specific responsibility. As an alternative, the amendment of the current punishment guideline would become a rational solution to satisfy the equality of the law.
Murder refers to depriving life from human and making it impossible to be recovered to human again. Especially, the murdering against ascendant(s) or descendant(s) among family members has caused a strong shock and an severe antipathy as a very serious crime in our society.
The ascendant murder has been punished as death penalty, life sentence or not less than seven year imprisonment in accordance with Article 250 (2) of the Korean Penal Code. The sentence for parricide murder as an anti-human crime is heavier than ordinary murder sentence.
However, the murders of descendant(s) like their children or grandchildren are usually punished as much as ordinary murder with no separate punishment provision. Moreover, a special case of descendant murder, an infanticide is punished with the penalty reduction provision enacted by Korean Criminal Act. The infanticide crime is applied to Article 251 of the Korean Penal Code only if a lineal ascendant like a parent kills a baby for disgrace and fear or for some extenuating motives while delivering or immediately after delivering.
The ascendant murders are required to be punished with heavier penalty by the current criminal law, regardless of the crime motive they committed. Therefore, the first aim of this paper was to grasp a reason of the inconsistency and to secure a concrete and valid criterion to judge the punishment degree considering crime motives. Thus, it was reviewed whether the punishment ground of the criminal law related to parricide crime was justifiable theoretically or constitutionally to examine an unconstitutionality of the law. And, it is also considered whether the regulation should be revised or abolished in accordance with the current Constitution enacted on base of equality and proportionality principles.
However, the infanticide is perceived as an atrocious crime by ordinary people of current society, who are difficult to understand and accept the fact that the law enacts the penalty reduction for infanticide crime. Therefore, more fundamental reviews are needed to settle down the question and to achieve the rational assertion about reduction provision for the infanticide crime. In particular, it is necessary to examine what is the punishment ground of infanticide crime, and whether the penalty reduction of the crime has an appropriate and specific motive accepted in modern society. Also. it will be investigated about possibility of the legislative amendment for parricide crime as much as the additional penalty for parricide murder.
Descendant murders are penalized with the provision applied for ordinary murders. But, they are differently punished from ascendant murder. If there is no reason for the different punishment, the life of descendant could consider to be relatively undervalued compared with that of ascendant. By any accounts, the current criminal law does not properly reflect the current situation of both the low-birthrate and aging society and particularly the parent duty for babies, infants, children and adolescents.
First of all, the Criminal Law more severely punishes the parricide crime because of immoral motives conducted by lineal descendant. But, when analyzed the actual state of ascendant murder, the ascendant murder crime by immorality only takes up a small proportion of parricide crimes. In this way, parricide crime by mental disorder can be overly and seriously punished despite the lack of immorality. But, the penalty for infanticide crime was set too low for statutory penalty. These facts are contrary to the principles of the Constitution as well as to moral judgment of citizens. That is, it is necessary to propose both the abolishment of the two current provisions and the application of new sentencing standard.
The present parricide crime can be sufficiently solved by considering the sentencing factors provided in the present sentencing standard. But descendant murder crime needs to be compensated with new factor because the action factor of 'descendant victim' is not available. If the 'descendant victim' factor is added to the weighting factors as a special sentencing factor, the resulted sentencing could be balanced with that for ascendant murder. However, it is also suggested that 'spouse victim' factor should be further included as a weighted factor. That is, the spouse murder also could be committed with a immoral cause as like as parricide murder. The spouse murder should be punished by considering the relationship based on a special trust and the spirit of Constitution on family.
In conclusion, murder crimes against linear ancestor and descendant and spouse must be punished more severely than ordinary murder crimes. The related regulations are uniformly requiring the weighted-penalty due to approval a specific position on family, excepting cases that the reason or degree of the crime accusation is so weak. The uniformly application of the weighted penalty can not ask for specific responsibility. As an alternative, the amendment of the current punishment guideline would become a rational solution to satisfy the equality of the law.
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