공동정범에서의 이탈에 관한 연구

Abstract

Regulation on joint principal offenders in criminal law punishes each of criminals when more than 2 persons jointly commit crimes as principal offenders of the concerned crime. So it is possible that a defendant who commits crimes partially is responsible for the crime entirely. Furthermore, when a defendant separated from the relationship of joint principal offenders halfway the crime, but thereafter the crime is continued by an accomplice, the defendant should be responsible for the concerned crime. The reason why the seceder is responsible for the crime entirely is because the regulation on a criminal of abeyance in criminal law does neither explicitly specify that the regulation applies to complicity nor require the crime to be inconclusive and terminated. In the case of separation from the relationship of joint principal offenders, the scope of responsibility must be limited to the acts before the stage of separation. In the judicial precedents or theories of separation, the separation from the relationship of joint principal offenders is recognized boardly before the stage of the commencing execution. On the other hand the separation after the stage of commencing execution is recognized very limited. However a separation from joint principal offenders should be recognized independent of the timing and the standard for recognition is as follows: (1) a seceder has the intention of separation; (2) before as well as after the stage of the commencing execution, a seceder must cut off the causal relationship between conspiracy and the crime of others. In order to recognize the separation, the seceder must strive for the deterring the crime; (3) the seceder does not have to declare his/her intention for separation explicitly. Provided that the separation is recognized,the seceder is responsible for the act taken place before the separation. Lastly, in order to apply the regulation of the criminal of abeyance to the relationship of joint principal offenders, it is desirable that the standard for recognition of separation be enacted in the Article 26 of The Criminal Act.