단순도박을 방조한 상습도박자의 형사책임

Abstract

The status of the article 33 of the Korean Criminal Code is an element related to a criminal actor and should have a peculiarity which people of the scope that is only fixed can have. This status should exist in those days of a criminal act but doesn't necessarily need to have continuity. The distinction standard of the element related to the criminal act and criminal actor is as follows: Elements related to the criminal act are ones that can be generated for the realization of illegal behavior by a criminal actor in those days of a criminal act. The recidivism of the crime of habitual gambling isn't an element that can be generated for the realization of the illegal behavior by a criminal actor in those days of a criminal act. Accordingly, the recidivism of the crime of habitual gambling isn't an element related to the criminal act but the criminal actor. Thus, the recidivism of the crime of a habitual gambling can be included in its(the article 33 of the Korean Criminal Code's) status and the crime of a habitual gambling is one that adds the punishment due to the status. The Supreme Court also judged in this manner but didn't mention whether the reference provision of this precedent is its body or proviso. However, when the crime offender having its status aids the crime of gamble of one not having its status, its body can't be applied to one having its status without reference to its application scope. If its body can't be applied to this precedent related to the formation of a crime that adds the punishment due to the status, we should examine whether its proviso can be applied to this one. But it is obvious that its proviso isn't a provision on the 'formation' but a provision on the 'punishment' of a crime that adds the punishment due to the status. Also, if a criminal actor committing a crime that adds the punishment due to the status hasn't its status, the criminal actor doesn't become one committing the crime that adds the punishment due to the status but one committing a different crime. Therefore, a crime that adds the punishment due to the status is also one formed due to the status and not its proviso but body is a provision on the formation of a crime that adds the punishment due to the status. Consequently, not only its body but also proviso can't be applied to this precedent related to the formation of a crime that adds the punishment due to the status. This precedent should be judged by a principle which is that the formation of the complicity should be subordinate to that of a principal offender. According to this principle, the habitual gambler aiding the crime of simple gambling should be punished with not aiding of the crime of 'habitual gambling' but aiding of the crime of 'simple gambling'.