공동정범의 초과실행에 대한 나머지 정범의 책임 범위에 대한 연구 - 준강도죄와 강도상해죄의 초과실행에 대한 판례를 중심으로 -

The Supreme Court says that if two or more people jointly steal, if one of the criminals assaulted and injured for the purpose of evading arrest, the other criminal cannot be exempted from the crime of robbery unless it is considered unexpected. Thus, the Supreme Court admits the crime of quasi-robbery or robbery-and-injury against other common offenders of theft who did not participate in assault or intimidation on the basis of predictability. Criminal law scholars take a negative view on whether quasi-robbery is established for other common offenses of theft that did not participate in the assault and intimidation of quasi-robbery. In this article, the basis for the Supreme Court's recognition of the establishment of a criminal offense of quasi-robbery or robbery-and-injury is not simply the predictability. Rather, I think the Supreme Court acknowledges the establishment of quasi-robbery crimes against accomplices who did not participate in the following points. In other words, it seems more appropriate to admit the guilt of quasi-robbery to the remaining accomplices because the intention of assault and intimidation already had in the theft point was achieved in the shared offences of other accomplices. Therefore, I would like to conduct research focusing on this point. In the case of robbery injury or robbery murder, the first offence is already initiated with the intention of injury or murder, which will be carried by the second act. In the case, at the time of the second act, it is assumed that only some joint offenders commit injuries or murders, which are excess acts, and the remaining accomplices do not participate in the excess offences. If there was already communication between the joint offenders about injury or murder, which is the second crime, at the time of the first crime, the other joint offenders who did not directly participate in the second act of injury or murder can also admit the guilt of the joint offender for robbery and injury or robbery and murder. If there was a communication of injury or murder as a second act in the first criminal act, injury or murder, which is an excess execution by some joint criminals, can be recognized as the sharing of the offence according to the communication at the time of the first act. Let's illustrate the case of robbery and rape. It is said that after the assault of the robber, who committed the first act, there was already a communication of criminal intent on rape, the second act. If only some accomplices participate in the execution of rape and the rest of the accomplices leave, the remaining accomplices cannot be held guilty of robbery and rape. This is because an accomplice who did not commit rape did not commit rape if there is no rape, which is a direct crime, even if there is an intention to rape in the first crime. This is because even if there is intention to rape in the first crime, if there is no sexual intercourse, an accomplice who does not practice sexual intercourse does not commit rape. Let's say the robbers already had the intention of rape at the time of the first act. The remaining accomplices who did not participate in the excess crime of rape, the second act, do not have a criminal division of rape, so only robbery is established. In the case of quasi-robbery, the intentional state of the first crime is more similar to the crime of robbery and rape than the crime of robbery and injury. The accomplices of theft, who carried out assault and intimidation in situations such as arrest after theft, have the intention of realizing the crime by simply executing assault and intimidation. In other words, the accomplices have specific perceptions and citations of the assault and intimidation currently being carried out. If accomplices of theft who did not participate in the excess crime were not executed through the sharing of assault, even if there was an agreement on quasi-robbery at the time of theft, the intention of accomplices who did not participate in the crime cannot be regarded as intentional for assault and intimidation of quasi-robbery. In fact, accomplices of theft, who do not have a real perception of the arrest at hand and a specific method of assault and intimidation, cannot be considered to have a share of the act of execution even for assault and intimidation committed by other accomplices. In the Supreme Court ruling, the meaning of foreseeability, which is understood as a criterion for the establishment of quasi-robbery and robbery and injury, was examined. Most of the consequential aggravated offenders of the criminal law are crimes in which risks latent in intentional basic actions are realized as a heavy consequence of life, physical health, or safety. Since theft is a crime that deliberately takes possession and ownership of other people's property and property, there is no potential risk to life, body, and safety in the act of theft itself. The crime of quasi-robbery is not a consequently aggravated crime of theft. In the rulings, it was examined whether the criteria of precedents, such as the predictability of the consequences of assault, intimidation, and robbery, are valid. First, we examined whether predictability can be a criterion for the establishment of an accomplice as the time of judgment on the theft of theft. Suppose that accomplices of theft have the perception of joint theft or special theft during theft. Even so, this cannot be effective as the basis for the establishment of a crime that recognizes the predictability of robbery and injury. Let's say that accomplices of theft have predictability of the consequences of robbery and injury at the time of theft. Even so, accomplices of theft cannot become joint offenders of robbery and injury unless they directly perform robbery and injury with the intention of assault and intimidation. This is because there is no causal relationship linked to the occurrence of robbery and injury in the crimes of accomplices of theft. Even in this case, the criterion of predictability seems to be inappropriate as a criterion for recognizing a common offense for robbery and injury.