강간 상황극과 간접정범 - 대법원 2021. 2. 25. 선고 2020도17776 판결 -

Indirect perpetration involves utilizing another person as a medium to commit a crime, enabling the instigator to execute their offense indirectly. Under Korean criminal law, indirect perpetration was devised as a mechanism to fill the gap in punishment created by the principle of derivative liability in cases where the principal perpetrator is not legally established, thus precluding punishment for accomplices. Discussions regarding the nature, defining elements, and scope of indirect perpetration under Korean criminal law remain ongoing. Recently, Supreme Court rulings recognizing indirect perpetration in cases of forcible molestation and cases where the instigator utilized a “disguised gang rape scenario” as an indirect means of committing rape have sparked controversy. These new forms of crime and the judiciary’s responses have stimulated academic debate on indirect perpetration. The cases involving disguised gang rape scenarios hinge on the intent of the person used as the medium. However, these cases have also been examined from various perspectives, including the control over the will of the person used as a defining element of indirect perpetration, mistakes regarding indirect perpetration, the concept of indirect perpetration as the “true perpetrator” behind the scenes, and errors regarding the premise of justification grounds. This paper analyzes Supreme Court rulings on disguised gang rape scenarios, focusing on the issues of control over the will and errors in indirect perpetration as defining elements of perpetration. It also examines discussions on indirect perpetration as the true perpetrator behind the scenes and errors regarding the premise of justification grounds. Furthermore, it explores the intent of the person used as the medium and the establishment of indirect perpetration by comparing the rulings with Anglo-American case law and a comparative legal perspective, ultimately drawing conclusions from these analyses.