부작위에 의한 방조의 성립요건 : 일본의 판례를 중심으로

Criminal law, the law on crime and punishment performs an important function to preserve people's benefit and protection of the law. And yet, since a powerful means is used as a means of performing this function, that is, the punishment for the restriction or deprivation of the life and freedom of criminals, it is necessary to pay close attention to the judgment and interpretation of the establishment of crime and punishment, and there remains a task to control the expansion and arbitrary exercise of the state punishment right. What is a problem in this light is ‘aiding and abetting by omission.’ The type of crime, the crime of omission itself is an exception, and moreover, the establishment of a crime and standard for judgment are problematic, concerning the aiding and abetting of the principal offender’s action by omission. Like in South Korea, in Japan, too, as domestic violence such as child abuse and spousal abuse became a serious social problem, noteworthy precedents appeared on the criminal responsibility of the guardians who looked on child abuse, and the contents of the obligation of a commission, and the causal relationship between the obligation of a commission and the prevention of consequence became issues. In the precedents, there were different judgment between the original trial and the appellate trial, and the Sapporo High Court of the appellate trial clearly defined requisites for the criminality of an accessory to a crime of aiding and abetting by omission, which attracted attention from Japanese practitioners and academia. Thus, his study investigated requisites for the establishment of aiding and abetting by omission, comparing theories of Korea and Japan based on the precedents. The obligation of a commission, casual relation to an act of a commission, and the possibility, accessibility and equivalence of the fulfillment of the obligation of a commission are required so that aiding and abetting by omission can be established. It is judged that among them, the accessibility and equivalence of the fulfillment of the obligation of a commission play a role in efficiently controlling the establishment of aiding and abetting by omission, and it is necessary to prevent the expansion of the range of the punishment of accessories to a crime of aiding and abetting by omission by clarifying these requisites for interpretation.