형법 제31조 제2항 및 제3항에 대한 연혁적 고찰

Abstract

Article 31 Clauses 2 and 3 of the Korean Criminal Act present stipulations on attempts to instigate crimes. According to these clauses, the punishments for conspiracies or preparatory actions for crimes are applied to instigators and the instigated. According to the opinion that accomplices are realized independently from principals, such cases must be punished as attempted criminals. On the contrary, according to the opinion that accomplices are realized in subordination to principals, such cases in principle cannot be punished. Consequently, the method of stipulation in the Korean Criminal Act can be seen as a compromise between the two opposing opinions regarding whether accomplices are realized in subordination to or independently from principals. This paper seeks to examine the origins of this method of compromise from a historical perspective. The Provisional Revision Draft of Japanese Penal Code of 1940 failed to present stipulations on attempts to instigate crimes in its General Provisions. However, the Particular Provisions of the same draft stipulated such attempts as individual and independent forms of crimes. On the other hand, the Penal Code of Manchukuo presented stipulations on attempts to instigate crimes in its General Provisions, seeing such attempts as tantamount to crimes in the preparatory stage of offence. Upon analysis of these two legislative attitudes, which have affected the Korean Criminal Act considerably, the Korean Criminal Act seems to follow the opinion that accomplices are realized in subordination to principals. This can be confirmed, first, from the legislators’ intentions. Second, it can be found in the differences between the Korean Criminal Act and the draft of Japanese Penal Code. The Korean Criminal Act presents stipulations on individual and independent “attempted instigation” crimes. However, unlike the draft of the Japanese Penal Code, the list of these crimes has been deleted to a considerable extent, and statutory punishments likewise are limited to conspiracies or preparatory actions for crimes.