영미법상 공범체계와 공범종속성 원칙의 변천

• 영문명: A Study on the Changes of Accomplice Liability Forms and the Rule of Accomplice's Dependancy on the Principal under Anglo-American Law
• 발행기관: 한국형사법학회
• 저자명: 김종구(Kim, Jong-Goo)
• 간행물 정보: 『형사법연구』형사법연구 제21권 제2호, 249~272쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2009.01.29

영문 초록

The Korean Criminal Code distinguishes between perpetrators and accomplices.The Korean Criminal Code recognizes three types of perpetrator: direct perpetrator, indirect perpetrator, co-perpetrator and two types of accomplice:solicitor and facilitator. However, such distinction is less significant in the Anglo-American system. Under the Anglo-American common law, principal and accomplice are both punished as felons. By contrast, the Korean Criminal Code draws a sharp distinction between the punishment of principals and accomplices. Thus, facilitators receive a mandatory punishment discount vis-a-vis the principal. Many of Korean scholars support the principle of accomplice's dependancy on the perpetrator. According to the principle, an accomplice cannot exist without the principal‘s wrongdoing. Similarly, under the early Anglo-American common law, it was impossible to convict an accomplice without first convicting the principal. Subsequent developments in Anglo-American criminal law, however, have made it unnecessary to obtain the principal's conviction as a prerequisite to convicting the accomplice. Thus, an accomplice can be convicted without punishment of the perpetrator under the American law. The author of this article argues that it is too burdensome and time-consuming to draw a categorical distinction between principals and accomplices. Furthermore, classification as a principal or as an accomplice made no actual difference in punishment. Thus, the author suggests that it is better to abandon the categorical distinction between perpetrators and accomplices. If the distinction is discarded, it will not be necessary to maintain the rule of accomplice's dependancy on the principal. The author argues that this reform can make the criminal law system more effective.

목차

Ⅰ. 머리말

Ⅱ. 영미법상의 공범체계

Ⅲ. 영미법상의 공범종속성의 원칙

Ⅳ. 우리형법상 공범체계와 공범종속성원칙

Ⅴ. 맺음말

키워드

정범 공범 교사범 방조범 공범체계 공범종속성원칙 Principal Accomplice Solicitor Facilitator Accomplice Liability Forms Rule of Accomplice's Dependancy on the Principal