합동범의 공동정범에 관한 비판적 고찰

A Critical Study on the Establishment of Jointprincipal Offender about the Collaboration Crime

In criminal law, the ‘collaboration crime’ means that a person who accompanied by two or more persons, commits the crime of Article 146(Special Escape), Article 331(Special Larceny) and Article 334(Special Robbery). According to the common opinion and Supreme Court s Precedents, the meaning of ‘collaboration’ is the ‘cooperative relationship in the same time and space’. What matters here isn t ‘concurrency’, it s ‘cooperative relationship’. the ‘cooperative relationship’ is the mark of the principal offender in reference to the performers. In this sense, the principal offender mark called ‘cooperative relationship’ is distinguished from ‘Tatherrschaft’ as the principal mark involved in the act. Therefore, in order to be the principal offender of collaboration crime, the performers need to form cooperative relationships with each other in the scene of crime. On this account, the accomplice who can’t form cooperative relationships with each other in the scene of crime can not be the principal offender of collaboration crimes. In the collaboration crime, a person who don’t form cooperative relationships in the scene of crime can t take control of collaboration crime. This is the limit of the principal offender mark called ‘Tatherrschaft’.