영미법상 공범체계와 공범종속성 원칙의 변천 - 우리 형법상 공범체계와 관련하여 -

Abstract

The Korean Criminal Code distinguishes between perpetrators and accomplices. The Korean Criminal Code recognizes three types of perpetrator: direct perpetrator, indirect perpetrator, co-perpetrator and two types of accomplice: solicitor and facilitator. However, such distinction is less significant in the Anglo-American system. Under the Anglo-American common law, principal and accomplice are both punished as felons. By contrast, the Korean Criminal Code draws a sharp distinction between the punishment of principals and accomplices. Thus, facilitators receive a mandatory punishment discount vis-a-vis the principal. Many of Korean scholars support the principle of accomplice's dependancy on the perpetrator. According to the principle, an accomplice cannot exist without the principal‘s wrongdoing. Similarly, under the early Anglo-American common law, it was impossible to convict an accomplice without first convicting the principal. Subsequent developments in Anglo-American criminal law, however, have made it unnecessary to obtain the principal's conviction as a prerequisite to convicting the accomplice. Thus, an accomplice can be convicted without punishment of the perpetrator under the American law. The author of this article argues that it is too burdensome and time-consuming to draw a categorical distinction between principals and accomplices. Furthermore, classification as a principal or as an accomplice made no actual difference in punishment. Thus, the author suggests that it is better to abandon the categorical distinction between perpetrators and accomplices. If the distinction is discarded, it will not be necessary to maintain the rule of accomplice's dependancy on the principal. The author argues that this reform can make the criminal law system more effective.