합동범의 공동정범 인정문제에 관한 판례의 동향

Abstract

Joint principal offender means a crime involving two or more people are directly in the commission of crime. Special larceny, special robbery, and special getaway crimes defined in the criminal law and special rape, special indecent assault, and special quasi-rape in the Act on Special Cases concerning sexual violence crime are applicable to joint principal offender. Previously, the common view was that the offenders cannot be accessories to joint principals if the offenders were not at the scene of the crime collaborating with each other as jointly means collaboration at the same time and place. However, the collaboration at the same time and place should not be mere behavioral component for joint principal offender but rather the essential requisite component for joint principal offenders and the essential element for confirmation of the joint principal offender as the principal offender. Furthermore, in order to establish as the principal offenders for joint principal offenders not only the control over the action but the scenic element must be present. Thus, the only people who collaborated at the same time and place can be the principal offenders for joint principal offenders and anyone who has not collaborated at the crime scene cannot be the accessory for joint principal offenders. As joint principal offenders are group of compulsory accomplices or special accessories, the law on accessories cannot be applicable to joint principal offenders. In this regard, it is hard to agree with the supreme court's ruling by its grand bench stating that one can be accessory to joint principal offender without collaborating at the scene of the crime. It is urgently required to analyze and review case law on the definition of the joint principal offender and whether one can be an accessory to the joint principal offender if he did not collaborate at the scene of the crime.