공범의 처벌근거와 입법론적 개선방안

Abstract

Article 31 of the Criminal Law deals with the regulations concerning instigators (accomplices). Paragraph 1 of this article addresses the establishment and punishment of instigators, while Paragraph 2 pertains to the punishment of both the instigator and the person being instigated in cases where the instigation is ineffective. Paragraph 3 provides the punishment regulations for the instigator in cases where the instigation fails. The issue arises when the law prescribes that both the instigator and the instigated person are to be punished as if they were guilty of preparation or conspiracy when the instigation is ineffective. In contrast, when the instigation fails, only the instigator is to be punished as if guilty of preparation or conspiracy. If the crimes committed by the instigator and the instigated person do not have provisions for punishment based on preparation or conspiracy, a situation may arise where these individuals cannot be punished. This legislative gap is not reasonable from a criminal law perspective. Criminal law, which functions to protect and maintain the social structure system, simultaneously serves a protective and guarantee function, making any gaps in the punishment of accomplices unacceptable from the viewpoint of crime prevention. From this perspective, I have systematically reviewed the theories and case law regarding the basis for punishing accomplices to propose a rational solution to the punishment of accomplices. As a result, I found that the punishability of accomplices cannot be uniformly understood in relation to the principal offender. Although, from the standpoint of the application of law (effect), the mixed causation theory seems most reasonable for the punishment of accomplices, issues such as errors in instigation may arise in cases involving accomplices, making it desirable to minimize controversy during the application of criminal law. Accordingly, it seems reasonable to propose a legislative theory that distinguishes between the instigator and the instigated person and punishes them separately according to the principle of individualized responsibility. For example, it may be necessary to consider revising the provision in Article 31, Paragraph 2 of the Criminal Law to state, “If the person being instigated consents to commit the crime but does not commence its execution, the instigator shall be punished as an attempted offender, and the person being instigated shall be punished as if guilty of preparation or conspiracy.” If this revision is made, there would be no need to amend the provision in the current Paragraph 3. Since in the case of failed instigation, it would suffice to punish only the instigator as an attempted offender. The intent of this legislative proposal is primarily to clarify the scope of criminal liability between the instigator and the person being instigated, with the aim of maximizing the punishment of the instigator. Moreover, under this legislative theory, even in cases where there is a qualitative excess due to an error in instigation, the instigator can be clearly punished as an attempted offender, allowing for the clear application of criminal law and providing practical effectiveness from a crime prevention perspective.