형사절차상 공범 처벌의 공평성에 관한 소고 - 고소 불가분의 원칙과 공소시효 정지효의 관점에서 -

Abstract

An accomplice is a form committing a criminal act by more than two people, in fact, it’s a very polysemous concept. A concept of an accomplice is often used not only in criminal law but also in the code of criminal procedure. In this entry, this writer examine in regard to the code of criminal procedure §233 and §253, in terms of fairness in a punishment of an definition, a range of complice affected by a suspension of prescription by a principle that a complaint can not be different among the accomplices and institution of public action. The principle that a complaint can not be different among the accomplices is provided only in an offense subject to complaint. but, this writer claims that interpreting that can be applied analogically in immediate accusations, too and interpreting that being applied a suspension of prescription, also, not only to accomplice in arbitrary but also to necessary accomplice including a two-way criminality. is right that punishment between accomplices at a fairness. Ideology of fairness is important virtue that no way inferior to substantive discovery of truth or legal process in accomplice cases. Relating with principle that a complaint can not be different among the accomplices, it’s more important virtue that fairness between accomplices rather than recompense or promoting/respect of reconciliation, professionalism respect of national agency. So, this writer examines that principle that a complaint can not be different among the accomplices should be applied in a crime requiring the victim’s stated decision and immediate accusations. And relating with suspension of prescription, because a problem that ,between necessary accomplices, can not be applied a criminal principle of law about an accomplice or can be different in a statutory punishment or there is a little difference with other accomplice can not be an inevitable reason jumping over a fairness in a punishment of accomplices, suspension of prescription should be applied all the accomplice. However, one-way criminality that is not punished is not be included in the accomplice because it is out of the point of the premise as a fairness in a punishment. The problems of fairness about a punishment for an accomplice occurs very various different forms above this. If it can be permitted an indictment about a part of accomplice of prosecutor, if it can be applied in a case that is only a part of accomplices confess and if it can be applied §314 of Criminal procedure law about a protocol of examination of a suspect of a part of accomplices and so on are related to the problem of fairness in a punishment of all the accomplices. I look forward that there are more and deeper study.