간접정범의 본질과 성립범위에 대한 고찰

This article consists of two parts. In the first half, the nature of indirect principal(mittelbare Taeterschaft) is identified, and in the second half, the conditions for establishing indirect principal are explained. As is well known, the discussion of the nature of indirect principal is one of the most controversial fields of criminal law. The theory of principal offender and the theory of accomplice are opposed, and various types of compromise theories are presented. After examining each view, this article proposes to set the nature of the indirect principal as a ‘pseudo principal offender’. It means that the indirect principal is within the framework of the principal, but rather than the orthodox principal, a crime close to the accomplice. Next, this article proposes a theory regarding the conditions for establishing indirect principal, under the premise that the essence of indirect principal is regarded as pseudo principal offender. Specifically, among the conditions for establishment of Article 34, Paragraph 1 of the Criminal Act, ①the scope of intermediaries and ②acts of indirect principal are explained. Intermediaries are those who go unpunished or those who are punished for negligent offenses. The acts of an indirect principal are abetting or aiding. In addition, ③command and supervision among the conditions for establishment of Article 34, Paragraph 2 of the Criminal Act are also explained. Through this, it is the hope of this article to contribute to unraveling the tangled threads of indirect principal theory, one of the most difficult fields of criminal law.