過失犯의 共同正犯에 관한 硏究

Abstract

A Study on the Complicity in the Criminal Negligence

Lee, Sang Young Advisor : Prof. Moon, Jeong Min, Ph. Department of Law Graduate School of Chosun University

Negligence is considered as an exceptional crime in deliberate negligence which is central to the existing criminal law theory in law or in reality. As current society has been decentralized, specified and complicated, the number of negligence is rapidly increasing as many as that of the deliberate negligence and the issue of negligence has been developed as a study on independent criminal theories. As such studies on negligence have been developed, there are many studies on joint principal offender through academic theories and precedents. This study focuses on the criminal articles on negligence and joint principal offenders, and based on the results, it looks at the joint principal offenders as follows: Article 14 on negligence in the current criminal law in our country regulates the general regulation and a punishment foundation as follows: 「 The behavior that does not recognize the fact by being negligent of normal attention, an essential condition of crimes, shall be punished only in case that there is a specific regulation on it 」 And in respect to the joint principal offenders, Article 30 of our criminal law regulates as follows: 「When more than two commit a crime together, each of them are punished as a principal offender. 」. Thus, joint commitment of a criminal behavior through a joint plan by more than two people is called joint principal offender. In respect to the joint principal offender of negligence in our criminal law, the problem is whether joint principal offender can be recognized if joint offending causes results of essential conditions of negligence by joint negligence. If the negligence is deliberately done, it is naturally recognized as joint principal offender, but the problem is whether negligence that is not intended is recognized as joint principal offender. For the joint principal offender of negligence, as " partial execution and whole responsibility ", the effect of the joint principal offender, is applied, actual base or opportunities to recognize such effect are necessary. Therefore, the joint principal offender of negligence must be based on the nature of negligence and joint intention. So, the essential conditions include joint attention duty and joint offending behavior. As the nature of negligence is violence against a duty of attention and the violation is individually demonstrated, it presupposes that each offender has a duty of attention. And as the joint principal offender recognizes joint responsibility for the results, legal position of each offender and the duty of attention should be same for jurisdiction. It is suggested that further studies should discuss the essential conditions of joint principal offenders of negligence seriously to prevent imprudent expansion of the range of the joint principal offender and to achieve fair evaluation on the joint principal offender in the criminal law.