간접정범과 정범우위성에 관한 연구

A Study of Indirect Principal and Precedence of Principal

Where more than one person are involved in the same crime, the Korean Criminal Act classifies them as a principal and an accomplice. A principal is a person who directly commits a criminal act, and an accomplice is a person who assists in the commission of a crime. In general, a principal includes not only a person that actually commits the crime but also a person that materializes his criminal intent by ruling the intent of another actor without directly performing the criminal act (Rule by Intent). The former is defined as direct principal, and the latter, as indirect principal. An accomplice is a person who is involved in the crime on the premise of the existence of a principal. Thus, a principal is an actor who is primarily responsible for the commitment of a criminal act, and an accomplice is a person who is secondarily responsible for that. Then, when more than one person are involved in a crime, a principal should be identified first, and only then can an accomplice be held responsible for the crime (Predominance of a Principal). In other words, who caused the criminal consequence should be first identified and then a person involved in the principal's act should be held responsible for the crime. However, Paragraph 1 of Article 34 of the Korean Criminal Act defines an indirect principal as "a person who is not punishable" or "a person who is punishable as an offender through negligence" regardless of Rule by Intent. This produces the result far from the principle of Predominance of a Principal. This is attributed to the lack of sufficient review of the principle that an accomplice shall be punished subject to the punishment of a principle.