공범의 죄수 - 대상판례 : 대법원 2010.11.25.선고 2010도1588 판결 -

As can be seen in the key precedent, case law holds that the number of offenses (in the narrow sense) established for an accomplice (an accomplice in the narrow sense) is determined in accordance with the accessorial nature of complicity, corresponding to that of the principal offender. However, if multiple offenses are established for the accomplice, their concurrence (in the broad sense) is judged based on the accomplice's own acts (the theory of standard of accomplice act or the accomplice-based standard). Although the referenced precedent does not explicitly mention the theoretical grounds for determining the concurrence of offenses (in the broad sense) for an accomplice based on the accomplice's act, there is no special reason to apply a different standard for determining the number of offenses for an accomplice than for a principal offender. Furthermore, since both imaginative concurrence and the comprehensive single offense are grounded in preventing double evaluation of illegality and the one-time nature of the decision-making, it is reasonable to resolve the concurrence of the multiple offenses established based on the accomplice's act. On the other hand, the accessorial nature of complicity, which is the main basis for the theory of standard of principal act, is merely a requirement to limit the scope of establishing complicity, given the atypical nature of the accomplice's act and as a reason for extending punishment. It does not provide any standard for determining the number of offenses for an accomplice. The same can be said for the theory on the grounds for punishing accomplices. However, the theory of standard of accomplice act can broaden the scope of evaluation as a single offense for the accomplice, leading to an imbalance in the sentencing and potentially granting the defendant an undue benefit in sentencing. It may also involve drawbacks, such as an unreasonable extension of the objective scope of the effect of ne bis in idem or res judicata for the accomplice, or an excessive delay in the starting point of the statute of limitations. In response, two alternatives are suggested: a substantive law solution, which conceptualizes the accomplice's acts as cumulative crimes (multiple offenses) rather than a single offense in procedural law, and a procedural law solution, which seeks to resolve the issue by modifying the objective scope of the effect of ne bis in idem separately from the identity of the facts charged, which is ordinarily determined according to the general theory on the number of offenses in criminal law. Nevertheless, the substantive law solution is overly technical and has the limitation of being unable to explain the reason for treating an accomplice differently from a principal offender in the process of constructing the acts as cumulative crimes. In my personal view, considering the established precedent that the scope of res judicata is determined based on the crime title and the facts of the crime in a finalized case, particularly in cases involving habitual offenders or comprehensive single offenses, the procedural law solution of modifying the objective scope of the effect ofne bis in idemcould be a practical alternative.