미국 형법상 핑커튼 법칙(Pinkerton rule)과 공모공동정범이론

This article seeks to re-examine the Korean doctrine of conspiracy co-perpetration (gongmo gongdongjeongbeom) in light of a critical analysis of the Pinkerton rule as developed by the United States Supreme Court, and to suggest directions for its reform. The Pinkerton rule is a doctrine under which a conspirator may be held liable for substantive offenses committed by a co-conspirator, so long as they fall within the scope of the conspiracy. In this respect, it shares with the Korean doctrine of conspiracy co-perpetration the common feature of extending serious criminal liability even to those who did not directly participate in the execution of the act. The Pinkerton rule has long been criticized in American scholarship and practice on the ground that it undermines the principle of personal culpability by imposing liability for results that the conspirator did not actually foresee, and that it can lead to disproportionate punishment for minor participants. It is noteworthy that the Model Penal Code (MPC), reflecting these criticisms, expressly rejects Pinkerton-style conspirator liability. The Korean Supreme Court likewise developed a doctrine of conspiracy co-perpetration based solely on the existence of a conspiracy, but soon faced academic criticism that this unjustifiably expanded criminal responsibility. In response, from the late 2000s the Court shifted course by requiring, in addition to conspiracy, strict objective elements such as functional control over the act and an essential contribution to the offense, thereby substantially narrowing the scope of co-perpetration liability based on conspiracy. At present, the reach of the Korean doctrine can be regarded as narrower than that of the still broadly applied Pinkerton rule in the United States. On the basis of this comparative analysis, the article proposes several reforms aimed at preventing abuse of the doctrine and strengthening the principle of culpability. More concretely, it argues that, as a rule, co-perpetration liability should be denied where the conspirator has not shared in the execution of the act; that the limits of the “functional control over the act”(funktionelle Tatherrschaft) concept adopted in the case law should be clarified so that mere peripheral participants are excluded from joint principal liability; that a separate statutory scheme for punishing conduct at the conspiracy stage should be considered; and that the very label “conspiracy co-perpetration” should be absorbed into and reorganized within the general theory of conspiracy co-Perpetration. These adjustments, it is contended, would preserve the practical utility of using conspiracy as a vehicle for expanding punishment, while at the same time mitigating the risks of over-punishment and infringements of the principle of culpability.