편면적 대향범에 있어서 공범의 성립

Abstract

There are two types of complicity in Korean Criminal Code, e.g. instigator andaider. In US complicity in crime extends beyond the perpetrator to accessories. Boththe perpetrator and the accessories are regarded by law as partipants in the crime, andare called accomplices. The perpetrator is an accomplice of the accessories, and theyare accomplices of the perpetrator and of each other. An accessory may be either aninciter or a helper. He is one who incites or helps the commission of an offence by theperpetrator. In Korea, whoever instigates another to commit a crime is subject to thesame punishment as is applicable to the person who actually commits the crime(§31①), and a person who assists another in the commission of a crime shall be punishableas aider(§32 ②). These articles are applied to voluntary complicity. Therefore there remains the problem of applicability of these articles to requisitecomplicity, especially to confronting requisite complicity. Korean Supreme Court takesa stance that only the performer can be punished for the commission and theconfronting participant is not punishable. The Court applied the principle judgingdifferent criminal responsibility of concerned people and sentenced that one part isresponsible and the other is not. So the Court faced critical problem of inequalitybetween the pricipal criminal and other involved. Here raises the question whether it isreasonable that the instigator should be punished or not. In this article are theseproblems dealt with. The Court seeks the ground of the code in the intention oflegislators, e.g. thepurpose of legislation. But this point of view of the Court is philosophically based on the legal positivism. So the problematic of the legal positivism is delivered to the sentences of the Court. The mens rea of the accomplices is the key point for solving the problem. The effort for seeking and proving that element and factor is lacking in the sentences of the Court.