공동정범의 구성요건과 본질적 기여에 대한 새로운 검토 (Newly reviewing corpus delicti of co-principal and essential contribution)

서지정보

· 발행기관 : 안암법학회
· 수록지 정보 : 안암법학 / 44호 / 165 ~ 212페이지
· 저자명 : 권영법

초록

Recent Supreme Court ruling is that the elements of decision on crime of co-principal(Mittäterschaft) are subjective requirement of joint aid and abet intention and objective requirement of functional act domination (funktionelle Tatherrschaft). Most of theories also support this ruling. However, though the resolution for joint offense has close relation with the subjective intention of the participant, the resolution itself is the objective form of the subjective intention; therefore, it belongs to objective elements of crime(Tatbestand). Accordingly, this study did a new analysis on the matter by classifying the constituting requirements of co-principal into objective requirement and subjective requirement. At this time, the fulfillment of elements of crime mark, resolution for joint offense, causal contribution of each participant and fulfillment of principal offender qualification by each participant are objective requirement; while the intention and awareness of each participant, which become the basis for the objective requirement mark and co-principal, belong to subjective requirement. The resolution for joint offense is strict elements of crime and the resolution should be on the ‘co-principals act’; while the resolution should have been agreed by talk among the participants, in principle. However, the proof of the resolution can be acknowledged either by explicit intention or an act implying such intention. The subjective illegal mark of each participant should be also sufficiently proved as strict elements of crime in addition to the resolution for joint offense. Essential contribution(wesentlicher Tatbeitrag) of each participant in the offense is elements of crime for the co-principal. This study explored the extent of essential contribution as elements of crime for co-principal by classifying them into principal offense mark and causal contribution. The principal offense sign co-principal consequently becomes act domination or act strength. This study did a new analysis on this act strength by examining the studies on the evaluation and measurement of influence, which are discussed in psychology, social psychology and social anthropo- sophy. Through this analysis, the matters and evaluation elements, which should be considered in the judgment of principal offense mark, were drawn. In order to establish co-principal, a causality(Kausalzusammenhang) should be established. This causality can be seen as ‘result-anti-value’; while the principal offense mark above can be seen as ‘act-anti-value’ in co-principal. Based on this analysis, the limit cases of additional/ alternative co-principals were newly analyzed and the causality issue related to group resolution, which is being discussed in Germany in relation to this matter now, has been reviewed.

영어초록

Recent Supreme Court ruling is that the elements of decision on crime of co-principal(Mittäterschaft) are subjective requirement of joint aid and abet intention and objective requirement of functional act domination (funktionelle Tatherrschaft). Most of theories also support this ruling. However, though the resolution for joint offense has close relation with the subjective intention of the participant, the resolution itself is the objective form of the subjective intention; therefore, it belongs to objective elements of crime(Tatbestand). Accordingly, this study did a new analysis on the matter by classifying the constituting requirements of co-principal into objective requirement and subjective requirement. At this time, the fulfillment of elements of crime mark, resolution for joint offense, causal contribution of each participant and fulfillment of principal offender qualification by each participant are objective requirement; while the intention and awareness of each participant, which become the basis for the objective requirement mark and co-principal, belong to subjective requirement. The resolution for joint offense is strict elements of crime and the resolution should be on the ‘co-principals act’; while the resolution should have been agreed by talk among the participants, in principle. However, the proof of the resolution can be acknowledged either by explicit intention or an act implying such intention. The subjective illegal mark of each participant should be also sufficiently proved as strict elements of crime in addition to the resolution for joint offense. Essential contribution(wesentlicher Tatbeitrag) of each participant in the offense is elements of crime for the co-principal. This study explored the extent of essential contribution as elements of crime for co-principal by classifying them into principal offense mark and causal contribution. The principal offense sign co-principal consequently becomes act domination or act strength. This study did a new analysis on this act strength by examining the studies on the evaluation and measurement of influence, which are discussed in psychology, social psychology and social anthropo- sophy. Through this analysis, the matters and evaluation elements, which should be considered in the judgment of principal offense mark, were drawn. In order to establish co-principal, a causality(Kausalzusammenhang) should be established. This causality can be seen as ‘result-anti-value’; while the principal offense mark above can be seen as ‘act-anti-value’ in co-principal. Based on this analysis, the limit cases of additional/ alternative co-principals were newly analyzed and the causality issue related to group resolution, which is being discussed in Germany in relation to this matter now, has been reviewed.

참고자료

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