국제형사법상 간접정범 규정의 적용 근거 - 정범 배후 정범 해석 문제와 관련하여 -

The war in Sudan’s western region from 2003 to 2004 resulted in the massacre. The acts concerned were committed by state agencies under Sudan’s president Omar al-Bashir's control. The pretrial chamber of ICC decided that there were reasonable grounds to believe that Al Bashir is criminally responsible under article 25(3)(a) as an indirect perpetrator. The case is based on Al Bashir's having allegedly used the apparatus of the State of Sudan to commit war crimes and crimes against humanity. The concepts of indirect perpetrator and actor behind the apparatus have been critically researched. The concept of domination through an organization of Roxin's theory could not escape criticism. The author discusses the concept of perpetration through an organization in view of Korean Criminal Act. Moreover, the legislative purport was researched about the provisions of Korean Criminal Act related with the indirect perpetrator including that of the Revision Draft of Japanese Criminal Code. The summary of this remarks is as follows : the author of this study argues indirect perpetration could not be punishable if the immediate actor was autonomous or criminally responsible for the crime. Moreover, indirect perpetration should be restricted to the cases qualified by the agent's innocence or lack of guilty mind. Thus, the author in this paper suggests that the article 34 of Korean Criminal Act should be applied for indirect perpetrator concerning the crimes of the Rome Statute. At last, de lege ferenda for applying the article 34, the author proposes that the article 18 of ‘Korean Act for Implementation of Rome Statute’(Act on punishment, etc. of crimes under jurisdiction of the International Criminal Court) should be revised.