‘합동’의 의미 재구성 ― 배후수괴 사례부터 망보기 사례까지 ― ― 대상판결 : 대법원 1998.5.21. 선고 98도321 전원합의체판결

Abstract

This thesis takes the positive stance that the application of ‘the theory of joint principal through conspiracy’, which has established itself as a precedent principle in our criminal law and has been recognized for criminal policy legitimacy, to collaboration crime, a type of collective crime, is in line with social circumstances and legal practice. Therefore this paper approves that the Supreme Court Ruling 98Do321 decided in May 21,1998 changing the existing precedents applies the general rule of Criminal Law to the criminal who didn't exist at the crime scene and reaches the conclusion of punishing the criminal for collaboration theft. By the way, the 1998 Ruling, as the way of maintaining ‘the field theory’ about the meaning of 'collaboraion' here as elsewhere, acknowledges the establishment of a joint principal conviction through conspiracy on condition that two or more persons perform their acts of execution on the spot. Thus this thesis aims to find out what's missing in the process of developing such logic that a hidden criminal, even in the case of a collaboration, may be punished as a joint principal through conspiracy, and make up for the lack of logic. This work is to defend the necessity and justification for punishing background bullies against being criticized for the gaps revealed in the argumentation process. Furthermore, it is concerned that the discussion of ‘the field theory’ in the collaboration crime turns out completely to be ‘the functional act-domination theory’ in the joint principal.