공동정범과 방조범

• 영문명: Joint Principal and Accessory74)
• 발행기관: 한국형사판례연구회
• 저자명: 최병각(Choi, Byung– gak)
• 간행물 정보: 『형사판례연구』형사판례연구 제27권, 115~147쪽, 전체 33쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2019.06.30

영문 초록

Where two or more persons are involved in an offence, the parties to the offence may be principals or secondary parties (accessories). Each offence will have at least one principal, although it is not always possible or necessary to identify the principal(s). A principal is one who carries out the main part of a criminal act, namely the substantive offence i.e. performs or causes the actus reus of the offence with the required mens rea. If two or more persons do so, they are joint principals. An accessory is a person who assists in the commission of a crime, but who does not actually participate in the commission of the crime as a joint principal. The distinction between an accessory and a principal is a question of fact and degree. The test to distinguish a joint principal from an accessory is whether the defendant independently contributed to causing the actus reus rather than merely giving generalised and/or limited help and encouragement. A person who incites another to a crime will become a part of a conspiracy if agreement is reached, and may then be considered an accessory or a joint principal if the crime is eventually committed. According to the Criminal Law in Korea, the joint principal and the instigator are subject to the same penalty as the perpetrator(§30, §31①), but the accessory may be punished with necessary reduction(§32②). Especially the distinction between the co-conspirator as a joint principal and the accessory for psychological assistance is very important in real cases. Although the so-called “dual intents” is required to be joint principals or accessories, joint principals need to recognize the connection of mutual cooperation and make an essential contribution during committing offences.

목차

[대상판결] 대법원 2018. 9. 13. 선고 2018도7658, 2018전도54, 55, 2018보도6, 2018모2593 판결

[연구]

Ⅰ. 들어가는 말

Ⅱ. 공동정범이 공범인가?

Ⅲ. 공동정범과 방조범을 어떻게 구별하나?

Ⅳ. 대상판결의 분석

Ⅴ. 맺음말

키워드

공동정범 방조범 공모공동정범 이중적 고의 기능적 행위지배 Joint Principal Accessory Conspiracy Accomplice Dolus