헌법재판소의 위헌결정이 있은 후 특수상해죄가 형법에 편입됨으로써 폭행죄와 상해죄의 기존 체계에 충돌을 가져왔다. 폭행치상죄는 물론 상해죄의 경우에도 행위방법 내지 행위태양의 위험성과 더불어 결과의 경중에 따른 구성요건이 차등화되어야 하는가라는 과제에 봉착하게 된 것이다. 비단 논란의 상황은 여기에 그치지 않는다. 행위방법의 위험성을 가중하면서도 그 법정형을 중상해죄의 법정형과 동일하게 규정하였기 때문이다.
첫 번째 문제상황인 특수폭행을 가하여 상해에 이르게 한 경우 형법 제262조에 따라 제258조의 예인 특수상해죄의 처벌에 의하는 것이 타당하다고 생각한다. 특수상해죄의 신설은 신체에 대한 침해에서 행위방법의 위험성을 새롭게 고려할 필요가 있다는 것이고, 제262조에서 제258조의2를 제외하지 않은 것은 특수폭행치상의 경우 기존과 달리 무겁게 처벌하겠다는 사회적 상황 내지 사회적 합의의 변화라고 할 수 있기 때문이다.
두 번째 문제상황으로 특수상해의 고의로 상해를 가하였는데 상해를 넘어 중상해가 발생한 경우, 행위불법과 결과불법 모두 제대로 된 평가를 하여야 한다는 점에서 중상해죄의 가중유형인 특수중상해죄(제258조의2 제2항)를 인정하는 것이 타당하다.
특수상해죄를 둘러싼 해석상의 논란은 이처럼 정리할 수 있으나, 다양한 입법론도 제시되고 있다. 생각건대 기존 폭행과 상해죄의 체계혼란을 최소화하고 해석상의 논란을 해소하기 위해서는 입법적 정비가 수반되어야 하는데, 가장 간명한 방법은 ‘단순상해<특수상해<중상해<특수중상해’순으로 가중하고 그들 각각에 대해 존속상해를 가중하는 방법이라고 하겠다.
As a result of the Constitutional Court's decision, Article 3(1) of the Punishment of Violences Act was deleted. Additionally, the crime of Special Bodily Injury was included in the Criminal Code to prevent gaps in punishment and ensure justice and balance in the punishment system. However, the inclusion of Special Bodily Injury crimes created a conflict with the existing system of violence and injury crimes. This raises the question of whether the elements of the crime should be differentiated based on the severity of the consequences and the danger of the method. The controversy doesn't end there. Regarding the first problematic situation, we believe it is appropriate to punish the offense of special assault resulting in injury under Article 262 of the Criminal Code, as an example of Article 258. The creation of the crime of Special Bodily Injury stems from the need to reconsider the danger of the method of behavior. The reason for not subtracting Article 258(2) from Article 262 is that it can be said to be a change in the social situation and consensus. Concerning the second problematic situation, it is appropriate to recognize special Aggravated Bodily Injury as an aggravated type of injury, where both the Handlungsunwert and the Erfolgsunwert are properly evaluated. The interpretive controversies surrounding the crime of Special Bodily Injury can be summarized as mentioned above, but various legislative theories have also been proposed. In my opinion, to minimize confusion in the existing assault and battery system, the simplest solution is to escalate the severity in the order of ‘simple injury < Special Bodily Injury < Aggravated Bodily Injury < special Aggravated Bodily Injury’ and intensify the penalties for each category.Regarding the first problematic situation, we believe it is appropriate to punish the offense of special assault resulting in injury under Article 262 of the Criminal Code, as an example of Article 258. The creation of the crime of Special Bodily Injury stems from the need to reconsider the danger of the method of behavior. The reason for not subtracting Article 258(2) from Article 262 is that it can be said to be a change in the social situation and consensus. Concerning the second problematic situation, it is appropriate to recognize special Aggravated Bodily Injury as an aggravated type of injury, where both the Handlungsunwert and the Erfolgsunwert are properly evaluated. The interpretive controversies surrounding the crime of Special Bodily Injury can be summarized as mentioned above, but various legislative theories have also been proposed. In my opinion, to minimize confusion in the existing assault and battery system, the simplest solution is to escalate the severity in the order of ‘simple injury < Special Bodily Injury < Aggravated Bodily Injury < special Aggravated Bodily Injury’ and intensify the penalties for each category.
As a result of the Constitutional Court's decision, Article 3(1) of the Punishment of Violences Act was deleted. Additionally, the crime of Special Bodily Injury was included in the Criminal Code to prevent gaps in punishment and ensure justice and balance in the punishment system. However, the inclusion of Special Bodily Injury crimes created a conflict with the existing system of violence and injury crimes. This raises the question of whether the elements of the crime should be differentiated based on the severity of the consequences and the danger of the method. The controversy doesn't end there. Regarding the first problematic situation, we believe it is appropriate to punish the offense of special assault resulting in injury under Article 262 of the Criminal Code, as an example of Article 258. The creation of the crime of Special Bodily Injury stems from the need to reconsider the danger of the method of behavior. The reason for not subtracting Article 258(2) from Article 262 is that it can be said to be a change in the social situation and consensus. Concerning the second problematic situation, it is appropriate to recognize special Aggravated Bodily Injury as an aggravated type of injury, where both the Handlungsunwert and the Erfolgsunwert are properly evaluated. The interpretive controversies surrounding the crime of Special Bodily Injury can be summarized as mentioned above, but various legislative theories have also been proposed. In my opinion, to minimize confusion in the existing assault and battery system, the simplest solution is to escalate the severity in the order of ‘simple injury < Special Bodily Injury < Aggravated Bodily Injury < special Aggravated Bodily Injury’ and intensify the penalties for each category.Regarding the first problematic situation, we believe it is appropriate to punish the offense of special assault resulting in injury under Article 262 of the Criminal Code, as an example of Article 258. The creation of the crime of Special Bodily Injury stems from the need to reconsider the danger of the method of behavior. The reason for not subtracting Article 258(2) from Article 262 is that it can be said to be a change in the social situation and consensus. Concerning the second problematic situation, it is appropriate to recognize special Aggravated Bodily Injury as an aggravated type of injury, where both the Handlungsunwert and the Erfolgsunwert are properly evaluated. The interpretive controversies surrounding the crime of Special Bodily Injury can be summarized as mentioned above, but various legislative theories have also been proposed. In my opinion, to minimize confusion in the existing assault and battery system, the simplest solution is to escalate the severity in the order of ‘simple injury < Special Bodily Injury < Aggravated Bodily Injury < special Aggravated Bodily Injury’ and intensify the penalties for each category.