집단범죄대책으로서 공모공동정범이론에 관한 고찰

Abstract

The the theory of the Joint Principal through Conspiracy is that, when two or more persons have jointly criminal plan and prepare in order to commit a crime, each of them shall be punished as a principal offender for the committed crime, even though one person who took part in such a plan actually commit the plotted crime. In a commonly accepted theory of the Joint Principal through Conspiracy, some criminologists oppose this theory on the grounds that it lacks in theoretical basis and the base of positive law, others argue that this theory might be overused or abused, in respect to the security of human rights. And, practically, it seems that the judicial decisions are affirmative to apply the theory to the organised or the co-operated crime. In the actual state of contemporary crimes, the boss of this collective organization, seldom or never practise the crime that they have conspired. But the boss have necessity that shall be punished more than the actual principal offender. This practical necessity makes court decisions have applied this theory to co-operated crime, but, today, more restrictively. In conclusion, there must be a reasonable limitation in applying this theory, lest this theory should be overused or abused. Also I hope that Korean courts would be more restrictive in applying the theory of the Joint Principal through Conspiracy and preserve in their effort to make improvement of Judicial right.