『공동정범의 과잉』에 대한 비판적 고찰

• 영문명: A Critical Study on the Excess of Co-principals
• 발행기관: 한국형사법학회
• 저자명: 김봉수(Kim, Bong-Su)
• 간행물 정보: 『형사법연구』형사법연구 제20권 제4호, 221~246쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.01.27

영문 초록

The Korean Penal Code prescribes that “When two or more persons have jointly committed a crime, each of them shall be punished as a principal offender for the crime committed” in Article 30. To be realized ‘Co-principals', the Supreme Court and doctrines expound that it is necessary to satisfy two required conditions : (1) two or more persons have jointly determined to commit a crime, (2) take a share in the act of committing a crime. But This general rule is not kept in connection with the robbery. In particular, this relaxation of conditions to be realized co-principals become visible remarkably in the ‘Quasi-Robbery' and its ‘offense aggravated by results of a crime'. In Article 30 of the Korean Penal Code, it is provided that “A thief who uses violence or intimidation in order to resist recovery of stolen property, to escape arrest or to obliterate a trace of the crime, shall be punished in accordance with the preceding two Articles”. However in “the excess of co-principals” case, that is one[A] of the two persons who had jointly determined to commit a crime uses violence or intimidation, the other person[B] do not it, the Supreme Court charge with the Co-principals of ‘Quasi-Robbery' in Article 335 or ‘Bodily Injury resulting from Robbery' in Article 337 to [B] on condition that B could have foreseen [A]'s violence at that time. But it is not appropriate that the Supreme Court call [B] for the Co-principals' liability of robbery only on condition with the possibility of foresight, because (1) [B] didn't take part in the violence of [A], (2) the second conditions to be realized co-principals which is to take a share in the act of committing a crime is not satisfied.

목차

Ⅰ. 서 설

Ⅱ. 공동정범의 성립에 관한 특수한 문제

Ⅲ. 『준강도』를 중심으로 한 ‘공동정범 과잉’의 문제

Ⅳ. 공동정범의 과잉에 대한 귀속기준으로서『예견가능성』의 한계

Ⅴ. 결 론 -『공동정범』으로 묶는 2개의 ‘끈’에 대한 명확한 인식의 필요성

키워드

공동정범 과잉 준강도 결과적 가중범 예견가능성 Co-principals Excess Quasi-Robbery Offense aggravated by results of a crime Foreseeability