본질적 기여를 고려한 공모공동정범

• 영문명: Study on Coprincipals by Conspiracy and Crucial Contribution
• 발행기관: 한국형사법학회
• 저자명: 정도희(Jeong, Do-Hee)
• 간행물 정보: 『형사법연구』형사법연구 제23권 제2호, 127~149쪽, 전체 23쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.02.28

영문 초록

Every time the debate about revision of joint principal offender emerges, the legislaton of coprincipals by conspiracy come into question. In the Penal Code we have the Article 30 of Coprincipals who means the person that One of two or more participants in a criminal offense who either perpetrate the crime or aid a person who does so. The theory of coprincipals by conspiracy means that person who conspires but does not engage in acts realistically is coprincipals. The interpretation of the theory is one of the crucial issue. Historically, our Penal Code has been affected from the Revised Penal Code Proposal of Japan in 1931. We have the special expression in the article 30 as that of Japan. Consequently, the establishment of Coprincipals by Conspiracy who only conspire is absurd. In this study I examined the theory and precedent, so I found the unnecessity of the coprincipals by conspiracy. First of all, the according to the Theory of Functional Behavior Control, though there is not practice behavior, if there is essential contribution, it is recognized that the coprincipals is established. Second, from that day of the precedent in 2007, "criminal act to crucial contribution" is essential and necessary to the whole plan of criminal act. Third, the legislation of coprincipals by conspiracy is unnecessary, and to punish crucial coprincipals by conspiracy behind the appearance of the atual doer, we have to apply the article 34 of current Penal Code. We can punish coprincipals by conspiracy by current provision that exists. It is reasonable to resolve by that provision. We have to suppose the intention of the Legislators. Therefore, new legislation about coprincipals by conspiracy is inappropriate. Rather we have to use the provision thar already exists and punish them.

목차

Ⅰ. 서론

Ⅱ. 공동정범 규정의 성립과 개정논의 전개

Ⅲ. 공모공동정범에 대한 전통적 입장 : 학설과 판례

Ⅳ. 판례에서의 기능적 행위지배와 “범행에의 본질적 기여”

Ⅴ. 결론

[참고문헌]

[Abtract]

키워드

공동정범 공모공동정범 일본 형법 형법 제30조 Coprincipal Coprincipals by Conspiracy Penal Code Japanese Penal Code Article 30