편면적 대향범에 가담한 자에 대한 형법총칙상 공범규정의 적용가부

Liability of Accomplice in One-sided Criminality

There are some crimes that requires more than two individuals who participate in committing such crimes in two opposite ways and criminal code provides that the performer is punished for committing them(one-sided criminality). It is one of the controversial issues whether it is possible to apply general provisions on accomplice liability to such crimes. Korean Supreme Court is taking a stance that only the performer can be punished for committing those crimes and it is not allowed to punish the accomplice through application of general rules on accomplice liability. For example Supreme Court decision 2011Do6287 decided November 13, 2011 applied that principle judging two-way criminality between doctors who issued false prescriptions and a taker who instigated the doctors to issues false prescriptions and ruled that the doctors(the issuers) are the only criminal and the other part(the taker) is free from that crime. But the Supreme Court rulings is facing some heavy criticisms that it is not resonable that the taker who instigated the doctors to divulge issued false prescriptions should be punished as an instigator and the Supreme Court s stance will result in inequality between the principal offender and others actively involved. This article deals with problems concerning the liability of accomplice in one-sided criminality and proposes some solutions for them.