간접정범에 관한 대법원 법리와 형법이론학의 과제

Abstract

Until now, criminal law theory has excessively consumed its capabilities in practically useless discussions on the essential theory of indirect criminal offenses. For this reason, criminal law theory neglected to critically analyze the dogmatic significance of the Supreme Court's ruling, which has dealt with more practical issues related to the establishment of indirect criminals. On the other hand, the Supreme Court has used terms close to everyday language such as "instrumental use" to punish indirect criminals in the process of interpreting and applying Article 34 (1) of the Criminal Code, while distancing it from the dogmatic concept used by criminal law theory and the legal principles of indirect criminals based on it. For this reason, the Supreme Court recently showed a lukewarm attitude to accept the legal principles used by the lower court for the first time in a Korean court, thus failing to develop its own legal theory worthy of its role and status as the final legal declarator. This article started from the awareness that the lack of communication, which stands out in the area of indirect crimes, can lead to side effects of arbitrary legal decisions and empty theory construction, and critically analyzed that there is a limit to making theoretically based legal decisions on various cases, including those recently handled by the Supreme Court, if we based on the conventional Supreme Court law on indirect crimes. As a result, I argued that the Supreme Court should achieve a normative turn to the concept of "domination of act through superior will-control" with the potential to cover various cases that cannot be contained in the old term "instrumental use" to overcome these limitations. Next, I positioned the dogmatic concept of "domination of act through superior will-control" derived from the interpretation of "teach or assist" in Article 34 (1) of the Criminal Code as a multiple function of "independent establishment, attribution condition and constituting the illegality of indirect criminal offenses." Finally, I confirmed that based on the concept of "domination of act through superior will-control" it is possible to capture the "illegal structure" of indirect criminal offences, which in turn enables the production of precise legal theory that can theoretically base the solution to the case of errors of indirect criminals. Criminal law theory has prepared both the concept of domination of act through superior will-control and the theoretical and practical precision legal theory based on it. The Supreme Court also expects to continue the symbiotic relationship between theory and practice by receiving these dogmatic achievements from criminal law theory.