형법 제34조의 입법연혁과 해석의 기초

Abstract

Article 34 in the Korean Criminal Code provides indirect principal(mittelbare Täterschaft). But in contrast to today’s theoretical understanding of indirect principal being a principal, section 1 of article 34 provides that the act of indirect principal is “instigating or aiding”, namely accessory’ acting and the standard of the punishment of indirect principal is it of “instigating or aiding”. The common view and the judicial precedent understand this article from the viewpoint of indirect principal being a principal, but a few scholars from the viewpoint of indirect principal being a accessory. If we survey of history of article 34 in the Korean Criminal Code, we acknowledge it is specially impacted from the Drafts of the German Criminal Code of 1925, 1927, 1930 and the Draft of the Japanese Criminal Code of 1931. These drafts adopted so-called the concept of widden accessory(erweiterter Teilnahmebegriff) and make accessory include indirect inprincipal. In consideration of these situations, the base of interpretation of article 34 is that lawmakers understood indirect principal of article 34 as a accessory. Even so, for example, the case that a man behind the affair cause he causes an agent without malice to engage in the commission of the offense remains the field of indirect principal. So it is necessary that we constitute the theory in the interpretation of article 34 in the Korean Criminal Code in consideration of these situations.