자기도피행위 등에 관여한 행위자의 형사책임

CRIMINAL RESPONSIBILITY OF A PERPETRATOR INVOLVED IN THE SELF-ESCAPING ACT, ETC.

In cases of making criminal escape(Article 151 of the Criminal Act), destruction of evidence(Article 155 (1)) and false accusation(Article 156), a perpetrator’s self-escaping act, etc. whose effect belongs to himself do not meet the legal elements of the offenses. The accused may not be the subject of perjury(Article 152 (1)). Here it is discussed whether a perpetrator should be punished when he is involved in the act, etc. by anyone else as instigator or accessories. The Supreme Court uses the criterion of ‘abuse of defense right’, when the Court judges the criminal responsibility of a perpetrator involved in the act, etc. by anyone else. But the Court acknowledges a perpetrator as instigator or accessories of false accusation without using the criteria. This paper argues as follows: (1) It is not appropriate to judge whether there is the criminal responsibility of a perpetrator involved in the act, etc. by anyone else by using the criterion of ‘abuse of defense right’ used by the Court or ‘self-protection right’ asserted by the scholars. (2) It is not reasonable to regard the perpetrator as a man with a negative status and apply Article 33 to his act. But on the case of perjury, Article 33 is applicable to instigating or aiding and abetting perjury by the perpetrator. Because perjury is a crime where person s status is an element. (3) Excluding the case of perjury, the perpetrator could be punished only if lawmakers made a penalty regulation as Article 257 (3) 2 of the German Criminal Act. (4) In conclusion, a perpetrator involved in the self-escaping act, etc. in the crimes where a perpetrator’s status is not a element should not be punished.