형법 제33조의 법적구조에 관한 입법론적 연구 (A Legislative Study on the Legal Structure of Criminal Law Article 33)

서지정보

· 발행기관 : 제주대학교 법과정책연구원
· 수록지 정보 : 법과정책 / 18권 / 2호 / 209 ~ 238페이지
· 저자명 : 박광현

초록

현행 형법 제33조는 일정한 신분범을 실현하는데 있어서 신분 있는 자와 신분 없는 자가 함께 공범으로 관여되었을 경우에 신분 없는 자를 예외적으로 처벌하는 규정으로서 처벌범위를 확대하고 있다. 신분범에 있어서는 신분이라는 개념이 매우 중요한 의의를 갖는데 신분이 있음으로써 범죄가 성립되거나 그 형이 가감되기도 하며 또는 신분에 의해 행위의 위법성이 조각되거나 책임이 조각되거나 면제되는 경우도 있기 때문이다.
그러나 우리 형법은 신분에 관한 개념정의가 없어 이에 관하여 학설과 판례에 일임하고 있다. 특히 형법 제33조는 입법과정에서 외국의 입법례를 많이 참조하였는데 그 규정형식과 내용이 독일형법 제28조나 일본형법 제65조와는 매우 다르며 규정의 불명확성으로 인하여 해석에 있어서 다양한 학설이 주장되고 있다. 이러한 문제인식 하에 신분 및 형법 제33조의 법적구조를 살펴본 후 개선방안으로써 입법론을 제시하고자 한다.

영어초록

Criminal Act Article 33 provides that “To a person who collaborates in the commission of a crime in which person’s status is an element, the provisions of the preceding three Articles shall apply even though that person lacks such status: Provided, That when the severity of a punishment varies with the accused’s status, the heavier punishment shall not be imposed on that person who lacks such status”Complicity and Status deals with the problems of how one who restrains status and the other who doesn't should be treated respectively, who are in the relation of complicies, especially in the case when the formation of the amount of punishment is influenced by the status. As to the issue of accomplice and status, our criminal law has no detailed provisions except for those of article 33.
This thesis is aimed at studying problems on accomplice and status in the criminal law. As to the issue of accomplice and status, our criminal law has no detailed provisions except for those of article 33, where “To a person who collaborates in the commission of a crime of which another’s status is an element, the provisions of the preceding three articles shall apply even though he lacks such status, but when the severity of a punishment varies with the accused’s status, the more severe punishment shall not be imposed on him who lacks such status”, is stated. Since our criminal law has no specific provisions about the concept of status, the things in detail are forced to be based on the theories and judicial precedents. Therefore the problems on accomplice and status has been known as the most complicated and difficult field. How to define the concept of status is first problem. The common opinion of the concept of status include only the continuative element, but new opinion include even temporary and psychological elements. Second, how to classified the status is. The common opinion of the past classified the status into the constitutive and the adjustable, and it also approved the joint operation and the individual operation. But, why reasonable it is? Ans there are many controversial points on Article 33. One of them is the disproportion in weighing of offense between the main text and the proviso. It is that the accomplices in the main text are punished more seriously than those of in the proviso without any apparent reasons. Another of them is illegal status and accomplice, responsible status and accomplice, double-statused criminal and accomplice, negative status and accomplice.
Article 33 of the criminal law seems desirable to be amended in the following way.
In the crime concerned with the relation of status the purnishment may be reduced if one who doesn't retain status in stignated or abetted the other who does. In crimes whose punishment can be added, reduced, or expiated respectively according to the status, the condition is applied only to one who retain status, not to the other who doesn't, when the latter improve. As human's modes of life become more complicated and pluralized, crime patterns are tending to become more intellectual and collectivized. Therefore, it is natural that the criminal development should be demanded. Especially as the criminal collectivization is more vicious than individual actions, the social dangerous condition is increasing gradually, and the establishment of special legislation system to cope with the problem and the classification of a principal culprit and complicity in the punitive appearances are appearing as important problems. With this as the problem on the essence of complicity is the most important theme through all the theory of criminal law and a debater's views of the criminal law or of his philosophy manifest their theoretical opposition through interaction, it is a very difficult problem to establish a reasonable theory a after grasping the classification.
Anyway, when we consider the increase of criminal patterns of complicity and the relative importance of its criminal theory, besides a reasonabe theoretical system and establishment of the legislative system, a new theory of the positive law interpretation must be studied and reviewed carefully.

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