[논문] 간접정범 규정의 해석과 허위공문서작성죄의 간접정범

• 영문명: Interpretation of the article 34 of the Criminal Act and the indirect principal in the preparation of false public document
• 발행기관: 한국형사법학회
• 저자명: 김태명(Kim Tae-Myeong)
• 간행물 정보: 『형사법연구』형사법연구 제22권, 41~71쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2004.02.02

영문 초록

The indirect principal is one who commits a crime by way of taking advantage of a person who himself is not punished. The article 34 paragraph 1 provides that a person who commits a crime by instigating or aiding and abetting another who is not punishable for such conduct, or who is punishable as an offender through negligence, shall be punishable in accordance with the provision for an instigator or accessory. The majority opinion understands that this provision defines that the indirect offender is not a kind of complicity but of principal, and insists that the indirect principal of a status crime, of which a person's status is an element, such as the preparation of false public document can't be constituted, because a person who lacks the status can't commit that crime. On the contrary the Supreme Court ruled that the person who made an untrue statement to a public official, thereby caused a false entry to be made in a public document shall be punished as an indirect principal of the preparation of false public document. For an adequate interpretation of the indirect principal clause, we should examine its provision not from its nature as a type of the principal, but from the legal or interpretational point of view. It can be confirmed the lawmakers of the Criminal Code in 1953 provided it as a fictitious complicity which shall be punished with provisions of complicity, and intended to prevent the extension of the scope of its punishment. The discussion in this paper can be summarized as follows. First, the indirect principal shall be constituted and punished in accordance with the provision for complicity. So the commencement of its commission is recognized not at the time when the indirect principal takes advantage of a person, but at the time when the person who is instigated or aided and abetted reaches the commencement stage of its commission. And the indirect principal shall not be punished, unless the person doesn't carry out a crime. Second, the indirect principal of a status crime such as preparation of false document(article 227) shall be constituted and punished. Because to a person who collaborates in the commission of a crime, of which a person's status is an ingredient, the provision of the Instigator and Accessories shall apply even though that person lacks such status(article 33), and the indirect principal shall be punishable in accordance with the provision for complicity(article 34 paragraph 1), a person who makes a false report to a public official and has that official enter record any false fact in a public document shall be punished as the indirect principal of the preparation of a false public document.

목차

Ⅰ. 서설

Ⅱ. 간접정범 규정의 해석

Ⅲ. 진정신분범의 간접정범

Ⅳ. 허위공문서작성죄의 간접정범

Ⅴ. 결론

Abstract