공동정범의 이론구성에 관한 비교법적 연구

The Korean criminal law is composed of a system that separate principals and accomplices. Such a system has its own justification in terms of realizing a law-governed state and the principle of legality, compared to the single-principal system. However, the basis of justification seems unstable, in that the principal theorization, especially the joint-principal one, is mostly based on criminal-policy perspectives. Based precedents composed through the medium of the concept, ‘conspiracy’, Theory of Joint-Principal through Conspiracy has led unnecessary and consumptive arguments while distorting the other joint-principal theories in the academic circles for a long time. Recently, however, a series of changes made in some precedents related to Theory of Joint-Principal through Conspiracy are providing us with a chance to reestablish a joint- principal theory. Only when solving joint-principal cases with the concept, ‘Conspiracy’ excluded from the joint-principal theory, we will be able to reestablish and develop this theory. Thus, embodying a standard of judgement for Theory of Functional Behavior Domination and applying it to this issue will be one of the most important assignments the academic circles of criminal law should complete at present. In fact, the Korean criminal law system separates principals and accomplices under the influence of ‘Tatherrschaft’ (Theory of Crime Domination) from Germany, and Theory of Functional Behavior Domination works as a common theory for joint- principals, but the reality of Theory of Joint-Principal through Conspiracy, established through Theory of Functional Behavior Domination, is not beyond its labeling, ‘Fundamental Contribution’. In such a circumstance, it is necessary to attempt to solve these problems by newly highlighting the basic perspectives of joint-principal theories. Especially, this study found it necessary to refer to other methodologies used to solve joint-principal problems in the U. S. and U. K. with different criminal law systems, in addition to joint-principal theories from the German criminal law. Overall, this study made an attempt to seek a plan to solve joint-principal problems as a comparative research, while overcoming difficulties found in the theorization and application of joint-principal theories.