형사절차상 ‘공범’의 의미에 대한 고찰

Abstract

Since there is no concept of ‘accomplice’ unique to the Criminal Procedure Act, the ‘accomplice’ in criminal procedure corresponds to a normative element that premises the ‘accomplice’ in the general provisions of the Criminal Act. The Criminal Procedure Act does not belong to the area to which the prohibition of analogy is applied. So according to the logical structure of analogy, the legal figure that coincides in its essential connections with the ‘accomplice’ in the general provisions of the Criminal Act can also be recognized as the ‘accomplice’ in the criminal procedure. The essential elements here can be understood as the objective participation in action and the participation in will for realizing the legal elements of the offense. This analogy should be made within the confines of ‘an offense jointly committed by several persons’ in Article 11 Subparagraph 2 of the Criminal Procedure Act. In this sense, the necessary accomplice who has the elements can be the ‘accomplice’ in the criminal procedure, but the employer and the actor in the joint penalty provisions do not have the elements, so cannot be. On the other hand, the scope of the ‘accomplice’ in the criminal procedure can be adjusted in accordance with the legislative purpose of the provision concerned of the Criminal Procedure Act and Singularia non sunt extendenda. Although a public prosecution shall be personally effective only to the defendant, the legislator established Article 253 (2) of the Criminal Procedure Act from the point of equality of punishment to extend the effect of a public prosecution to the accomplices and suspend the running of the limitation period of public prosecution for the accomplices. The equality of punishment should be considered among the accomplices in the general provisions of the Criminal Act and the necessary accomplices who realize the common legal elements of the offense. However, the equality of punishment don’t have to be considered in the adversarial crimes in which the separate legal elements of the offense are made for each adversary. So the adversaries in these kind of adversarial crimes are not included in the ‘accomplice’ of Article 253 (2) of the Criminal Procedure Act. To sum up, the Supreme Court identified the employer and the actor in the joint penalty provisions as the ‘accomplice’ in the criminal procedure, it is difficult to accept the judgement of the Supreme Court, but the Supreme Court judged properly that the adversaries in the adversarial crimes such as offer of bribe and acceptance of bribe should not be included in the ‘accomplice’ in Article 253 (2) of the Criminal Procedure Act.