형법해석을 둘러싼 의문에 관한 小考 - 공모관계의 이탈에 관한 판례의 태도를 중심으로 -

A Study on some questions surrounding the criminal law interpretation

Considering the meaning of punishment and the role of nation, criminal law shall have grounds to justify intervention and strict requirements than any other law. In this sense, the interpretation of criminal law should be based on the Subsidiarity Principle. In addition, subsumed as the legal situation we find a legal interest to be protected legally form above constitutional value system of social communities and conduct of the actor is contrary to sound common sense and ordinary law sentiment of the people through the criminal law prior to analysis into the possible meanings limits of discourse It must be a demonstration that it can be. The Supreme Court against the Criminal Code interpreted strictly construed in accordance with the wording, it shall apply to, and that not to be construed defendant to excessive expansion or inferred by unfavorable direction, and that a teleological interpretation is possible. Interpretation of the Criminal Code also must not be beyond the interpretation of the new legislation by the judiciary, should not be in this analogy applies for other legal situations. Shall operate within the limits of legislation and infer, interpret criminal law shall contribute to the justification of punishment in the central purpose of criminal law as a constitutional value that precedes the political community. Interpretation of the Criminal Code in this respect is to be grammatical interpretation as the start of the Penal Code interpretation, it ought to teleological interpretation within the meaning of the Law and possible limitations to the end points of interpretation activities. At the same time to be considered a historic analysis and systematic analysis. If so, it can not be considered reasonable position of the above-mentioned Supreme Court. Reviewing so-called the separation of conspiracy relationship in this respect, as if the Supreme Court to understand, and the intent of co-principal=conspiracy, preparation=conspiracy=intent of co-principal becomes a form of. It overlooked the differences in wording and even the purpose of the Penal Code 30 brings the results that can be compromised. Therefore, the concept of conspiracy should be interpreted more narrowly than the intent of co-principal. In addition, Looking for separation from what does, this separation from the conspiracy is as an accomplice resolved or to leave the accomplice relationship in a broad sense. Separation from accomplice relationship can be recognized jointly for the co-principal offender, as well as accessory.