의무범에서의 정범과 공범을 구별 짓는 기제로서의 ‘의무의 강약설’ 및 사회적·규범적 판단에 대한 연구 - 부작위 경합 상황에서의 의무의 충돌 및 의무부과의 개념을 중심으로 -

Abstract

Until now, the form of distinction in the the sphere of the ‘act’ was mostly ‘act-act’form, but in the sphere of the ‘omission’, there are three types of participation. these are ‘act-omission’, ‘omission-omission’ and ‘omission-act’ . The key is to establish a standard for distinguishing between the principal offender and accomplice. There should be a standard for determining whether the participant is a or an accomplice. Even in the form of omission, it is necessary to distinguish whether the omission is a principal offender or accomplice, and whether or not the omission is an accomplice is important theoretically and practically. However, there have not been many studies on the subject of principal offender and accomplice in omission crimes in Korea. There have been occasional studies on the possibility of establishing such a structure in Korea even when there is a conflict of omission in omission, but there are still very few papers on the distinction between principal offender and accomplice among omission actors. Also, there is not much literature in Germany or in Japan. The study on the distinction between a principal offender and an accomplice in a crime of omission has been long, but the study on the distinction between a principal offender and an accomplice in a crime of omission has not been long, and there is little data, but it is probably because the omission is invisible. However, in reality, the omission is criminally punished, and few countries do not punish omission under the current law. Therefore, the need for research is not small. In this paper, the main theme was the possibility of establishment in the case of omission, and it was analyzed from various angles in terms of theory. The reason why we selected the theory of discrimination between the principal and accomplices of omission and the possibility of establishing a joint principal is that we should clearly examine the basis for punishing omission offenders in practice through criminal law theory and reduce punishment for omission if the basis for punishment for omission is not clear. In the process, the importance of the concept of mandatory offenders became clearer. In the t ype of ‘omission-omission’, does both become principa l offenders because there is no control over no action? It is not easy to distinguish between when it is the same as the principal offender and when it is the same as an accomplice. There may be cases where it is a principal offender, and there may be cases where it is an accomplice, and the specific criteria are not clear. In a structure in which a person participates in a crime of omission or a structure in which a crime of omission is involved, the theory that a person who participates is an accessory is almost, but in some cases, I think it should be regarded as a crime of omission. The purpose of this paper is to present some criteria for distinction. Although we accept the position of the principle aiding and abetting theory in the case of omission, this paper classifies the form of omission as a classification based on the same value standard theory, but it is not an essential discussion of omission. Some textbooks describe the form of participating in omission as an accomplice to omission, but the accomplice to omission has usually been discussed only participating in omission as a form of omission. However, since it is possible to participate in the omission in the form of omission, and it is possible to participate in the form of a public offender rather than an accomplice, there is no reason to use the expression of accomplice in omission anymore.