부작위범에서의 동가치성 및 과실부작위범 - 행위지배표지의 불충분성에 대한 의무범이론의 상보성을 중심으로 -

Abstract

Criminal law is a powerful system with sharp tools that can deeply hurt people and even destroy people, so through criminal law, it formalizes social control exercised by criminal law, ensuring that the damage caused by criminal law is minimized. In the social role, concreteization is bound to depend on the situation. In light of the view that the omission itself, that is, the omission of the guarantor, should not be punished, it is more difficult to understand that the omission of the non-guarantee is punished through Article 33. It is desirable to arbitrarily reduce the omission of the guarantor, but it would not be desirable to punish the omission of the non-guarantee through Article 33 and not be able to arbitrarily reduce the omission. It is the same that this is not solved even if it is viewed as a concept of a identity offender. It is also not clearly defined how far one should be regarded as a status. In the form of “no action-no action”, it is not considered a problem of no action because the no action is to participate in the form of no action, and this part can be solved to some extent by the concept of an accomplice and an identification offender under Article 33 of the Criminal Act. Even so, Article 33 itself cannot be applied to non-identical people. This is because Article 33 will apply only to those who are identified. I think Article 33 will apply only if all participants have status. This is because asking for responsibility even though you are a non-identity person without status would be as if you were asking a person who did not have an obligation in the crime of breach of trust to be guilty of breach of trust. Even in the issue of establishing a joint principal offender of omission, each principal offender must have a guarantor status and an obligation to act to establish a joint principal offender of omission. If any one of them has no obligation to act, a joint principal offender of omission cannot be established even under Article 33 for a person who has no obligation to act. In the Boramae Hospital case, the patient’s wife was judged as a murderer by omission. The doctor’s doing can be regarded as an act or an omission. Suppose a father stays still when his child is drowning. If the child is drowning and the father is just looking at him, it is of course a crime by omission. Mentally encouraging and assisting through acts of action, or handing over murder tools or giving tips, then these can also be regarded as crime by omission. If there is a person who applauds, helps, and instructs them to kill him from behind, it should be considered that the person who does this is a criminal by act, but there is room for discussion whether this committing criminal is a principal offender or an accomplice. It should be distinguished whether the criminal is a principal offender or the accomplice.