이른바 ‘정범 배후의 정범’에 대한 일고(一考)* - 「국제형사재판소에 관한 로마규정」 제25조 제3항 ⒜의 해석과 관련하여 -

According to Article 25 ⑶⒜ of the ICC Statute, indirect perpetration requires that the perpetrator commits the offence ‘through another person’, regardless of whether that another person is criminally responsible. In this regard, the decisions of the ICC note that, the provision appears to contemplate two possible forms of indirect commission: one arising from a person as a mere instrument who does not bear criminal responsibility and another brought about by a criminally responsible person charged with an intentional crime (‘the perpetrator behind the perpetrator’). Furthermore, the ICC interprets the concept of ‘the perpetrator behind the perpetrator’ to include using an organised apparatus of power for making another person commit a crime (‘perpetrator’s ccontrol over an organisation’). Such an interpretation is based on the terms of of Article 25 ⑶⒜ of the ICC Statute, but above all, it is meaningful in that it values the aims of of the ICC Statute. Such teleological interpretation is thought to have great implications for understanding the characteristics of the perpetration by means, but it would be difficult to recognize ‘the perpetrator behind the perpetrator’ as a form of indirect perpetrator pursuant to Article 34 ⑴ of the Korean Penal Code. However, if the conceptual extension of an indirect perpetration is considered to affect the aggravated forms of abetting the commission of a crime under Article 34 ⑵ of the Korean Penal Code, ‘the perpetrator behind the perpetrator’ can be discussed as indirect perpetration pursuant to Article 34 ⑵, so to speak, as indirect perpetration in a broad sense.