공범이론에서 ‘공모'(共謀)개념의 문제성

Abstract

The concepts of Principal and Accomplice of Criminal Law Theory has beenestablished based on complicity system, while Judicial precedent has given theimpression that it resolves problems in the way which is available in a unitary system. This impression is strongly revealed in the point of precedent concerning so-calledconspiracy legal theory and especially it peaks in the part of suggesting the reason ofConspiracy. Thus, an abnormal derivative, ‘a breakaway from the complicity’ isfollowed. The Supreme Court has consistently admitted to a conspiracy legal theoryapproximately for 60 years. The theory has brought a result which shakes the wholecomplicity theory up due to its base on the appropriateness in a criminal policy, thenecessity of punishing a person who is not even involved in practicing action, and as aresponse for it, justifiable criticisms from the people in the academic world have comeout in succession. However, recent judicial precedent about conspiracy legal theory ofthe Supreme Court draw some attention by using a few terms that might becommunication possibility. We don’t know whether it is reaction to the criticisms inthe academic world or not. Some of them in the academic world try to keep figuring out that conspiracy legaltheory could be considered as joint principal offender through the mark of Principal, rather that ‘Complicity’ of the joint principal offender. In this paper, Conspiracy means plan of crime itself unlike the subjective element ofthe co-principals, - co-decision process - and the self-recognition that the partaker whoparticipates in the crime plan recognizes a crime plan jointly exists is defined asco-decision process by expression of opinion. In this light, the judicial precedent thatthe subjective requirements of Conspiracy and Co-principals, co-decision process, isconsidered identical, and if there is only a conspiracy, Co-principals will be valid takescriticism. Case law on the basis of the functional behavior conspiracy theories dominate theformation of a joint attempt to configure co-principals is positively evaluated. However, as the nature of the functional behavior co-principals ruled jointly fromset theory, if the configuration is still said to be incomplete. We ‘competition’ is toeliminate the concept of co-existing theory through co-principals willing toco-processing requirement of self-run objective of co- principals. If you do not atheorization starts from the functional behavior conspiracy theories as an essence of theco-principals, in this case it still said to be incomplete. If you do not have to conduct a joint review of the room to accept theestablishment of a joint research co-principals it should be. This means that in orderto establish the theory of accomplice conspired to jointly co-principals theory ratherthan in the direction of the convergence of the joint co-principals theory ‘Conspiracy’accomplice cases it is desirable to spread.