과실범의 공동정범에 관한 판례분석- 의사연락을 중심으로 -

Abstract

The theory of co-principals of crimes by negligence is conventional in our criminal justice field. It is not difficult to specify negligence of an individual actor as the cause of the outcome. Where the cause of outcome is not specified if the rules for concurrence of independent acts are applied to each actor the actions of each actor should be treated as attempted actions. Because there is no rule for attempted crime for negligent offenders however criminal liabilities cannot be imputed to each actor. By contrast if the principle of partial execution and full responsibility is applied all the actors would be held criminally liable as principal offenders. This article summarizes the precedents in a couple of types: (1) the cases in which communication between actors is directly derived, and (2) the cases in which communication between actors is indirectly derived from the actors’ perception to have participated in joint works by themselves. In addition, in considering the meaning of communication of intentions as a condition for establishing a common offense of negligence criminals, the cases of Japan are discussed. In case of building collapse such as the collapse of Sampoong Department Store and the collapse of Seongsu Bridge, the issue of criminal responsibility among actors was classified as the type 2. The academia criticizes that in case of the type 2, the precedents have derived communication of intentions simply from abstract concepts such as “safe building construction.” However, it is worth noting that in most situations under the type 2, it is impossible to have or prevent the occurrence of the results only with one person's power from the beginning. Also because the essence of negligent offenders is to avoid the occurrence of the results, it is significant to apply the theory of joint offense of negligent offender to the type 2. However, it is important to establish relevant criteria in detail in considering that an individual actor’s duty of care has been violated with respect to the results that have occurred, in order to prevent expansion of excessive criminal punishment.