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所謂「아쟝·뿌로보까뛰르」(陷害敎唆)에 관한 形法上의 諸問題
姜求眞 명지대학교 1973 明大論文集 Vol.6 No.-
Entrapment, so-called, is a relatively simple and very desirable concept which was unfortunately misnamed with some resulting confusion. It is socially desirable for criminals to be apprehended and brought to justice and there is nothing whatever wrong or out of place in setting traps to catch those bent on crime; what the state cannot tolerate is having its officers, who are charged with the duty of enforcing the law, instigate crime by implanting criminal ideas in innocent minds and thereby bringing about offenses that otherwise would never have been perpetrated. Thus the primary purpose of this paper is to discuss about the criminal responsibility of the so-called agent provocateur. With regard to the problem whether the agent provocateur should be criminally punishable as the instigator of those who are induced by the entrapment to commit the crime, the opinions among Korean criminal law scholars are divided. The majority opinion argues that the agent provocateur is not punishable, because the criminal intent (dolus) of the agent provocateur is not sufficent to constitute the dolus of the instigator to the crime in question. In the majority opinion the agent provocateur is considered to have no dolus, since he neither desires the consequences of the crime in question, nor consciously permit them to occur. In this regard, the majorty opinion insists upon the theory that the dolus of the instigator to crime should include the intentional desire of the consequences of a crime, apart from the intentional consciousness of the act of the perpetrator. The writer of this article, however, concluds that the agent provocateur should be made punishable. The main resons for this conclusion may be summarized as follows. First of all, the essence of the instigation of a crime consists in creation of dolus on the part of the person who is instigated to commit the crime. Therefore, the dolus of the instigator does not necessarily require the intentional desire of the consequences of the crime. In other words the intent to bring about the decision of another person to commit a crime is enough to form the dolus of the instigator. In this connection, Article 31 of the Korean Criminal Code can be justly understood. It provides: For a person who instigates another to commit a crime (emphasis added) the same punishment shall be applied as one who actually commits the crime. It is evident from the above provision that the instigator does not necessarily have to induce another to Cause the cosequences of the crime, but it is enough for him to commit a criminal act in a broad sense (In this regard, it is not important whether the criminal act of the perpetrator has been completed or not). Secondly, in view of the public policy and in consideration of the purposes of our criminal process, it is not govornment officials' or agents' duty to incite and to creat crime for the sole purpose of prosecuting and punishing it. And then it is unconscionable, contrary to public policy, and to the established principle of our law to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of, if the officers of the law had not inspired, incited, or persuaded. With regard to the remaining, but important, question, whether the actor was induced or solicited by the agent provocateur to commit a crime constitutes a defense, the author takes the view that it is a defense unless (1) the idea of committing the crime originated with the actor or co-conspirator and not with the agent provocateur who solicited or induced its commission; or (2) the crime was of a type which is likely to occur and recur in the course of the actor’s business or activity, and the agent provocatur did not mislead the actor into believing his conduct to be lawful and did not use undue inducement or encouragement to procure the commission of the crime. (cf. Wisconsin Judiciary Report on the Criminal Code (1953))