‘중립적 행위’에 의한 방조 -일본 판례 및 학설의 전개를 토대로-

For an aiding-and-abetting offense to be established, at least a principal offender who has resolved to commit the crime must exist, there must be an act of aiding that facilitates the principal’s act, and a causal relationship between the aiding act and the principal act, as well as recognition of that relationship (i.e. intent to aid), are required. Generally, when an act of aiding is premised on a principal who has decided to commit the crime, it does not raise a significant point of contention in resolving the case. The problem is that, because the methods of committing an act of aiding are very broad, it is not easy to determine on theoretical grounds whether a “neutral act,” such as a routine professional activity or everyday behavior, constitutes aiding. While categorizing such neutral acts is virtually impossible, attempts have been introduced—centering on Japanese case law—to explain the theoretical basis regarding aiding through neutral acts. The first case involved the act of uploading a file-sharing software (Winny), which operates via a peer-to-peer (P2P) system, to the defendant's personal website. This act was used by an unspecified number of individuals to commit copyright infringement. In the first-instance ruling, the court acknowledged that by making the software available to the public, the defendant's actions had influenced the principal offender’s execution of the criminal acts. As a result, the court found the defendant guilty of aiding and abetting the offense of copyright infringement. However, the appellate court held that merely recognizing the "possibility or likelihood" that other users might commit copyright violations by using the software was insufficient. Therefore, under the reasoning that there must be proof of the software being used for the substantial purpose of committing copyright infringement, the appellate court acquitted the defendant. The Supreme Court reaffirmed its stance on the appellate court's standard of judgment. In the second case, where a foreign national with whom the defendant was cohabiting became an illegal resident by overstaying the permitted period of stay and the defendant continued their cohabitation knowing this, the first-instance court found that this constituted aiding (as it enabled the illegal stay); however, the second-instance court held the defendant not guilty on the grounds that it was merely the natural and ordinary behavior of a cohabiting relationship. Such acts fall under the category of so-called “neutral acts,” and academic theories on this issue can largely be divided into two approaches: one view examines it from the perspective of whether “intent to aid” is present, and the other approaches it as a question of “objective imputation.” However, the approach of the objective imputation theory—by treating the attribution of the result as the main issue regardless of whether the risk-creating act was committed intentionally or negligently—has a theoretical flaw in that it unduly expands the scope of intentional completed offenses. Therefore, in the case of aiding through neutral acts, it is theoretically more sound to seek a solution by examining whether the intent to aid can be acknowledged, rather than by treating it as an issue of objective imputation.