The Pragmatic Function of the Inapplicability of the Accomplice Rules in Requisite Complicity
━In Terms of the Game Theory━
“Can we punish the unpunishable counterparty of unilateral requisite accomplice by the Accomplice Rules of the provisions of Criminal Act?” This question is one of the most controversial issues both in legal field and academy. Someone said discussion about this question is one of a few topics that Korean legal academy has its own theories and opinions which are differentiated from Japan or the other western countries.
The advocate of applying general Accomplice Rules emphasize the needs to eliminate vacuum of punishment. On the other hand, the opponents focus on the principle of “nulla poena sine lege”. Therefore, it is easy to think that only the former choice has realistic and practical effects while the latter is confined to formality. However, in respect of the game theory, we can find the pragmatic advantage from stance of the objects. According to the ‘Basu proposal’, we can control bribery crime more effectively when we punish only the receiver and let the giver go. It is because this action gives one side incentive to betray the other side and blow whistle.
Therefore, the stance of Supreme Court is reasonable, and we can consider making more practical application of the principle. ‘Nordic Model’ for eradicating prostitution is good example. Punishing only the buyer can make disclosure easier and suppress demand effectively. The model also has its own vulnerabilities but urgency of sex selling market control necessitates considering Nordic model implication in Korea as alternative.
In general provisions of Korean Criminal Act, who instigates another to commit a crime, the same punishment shall be applied to the instigator as one who actually commits the crime (§31 ①), and a person who aid and abet the commission of a crime by another person shall be punished as accessories (§32 ②).
In particulars of Criminal Law, various types of accomplices are prescribed. In academical classification, ‘requisite complicity (Begegnungsdelikt)’ means the crime which inevitably requires the existence of a counterparty’s reaction for valid crime. For example, bribery needs giver and receiver. It is divided into three categories based on the aspect of punishment. There are cases where both sides are punished by the same criminal penalty, both are punished but by different criminal penalty, and cases where only one side is unilaterally prescribed a crime and one side of the crime is unpunishable. The last case is called unilateral requisite complicity. Consumer of “Distribution, etc. of obscene pictures (§ 243)”, requester of “Murder upon request of with consent(§252 ①)”, object of “Harboring criminal(§151 ①)” are unpunishable by the same article and only seller, executor, and criminal who is concealed get penalty.
Therefore, the key problem is “can we punish the unpunishable counterparty of unilateral requisite complice by the Accomplice Rules of the provisions of Criminal Act?”. It is one of the most controversial issues in field and academy. Discussion about this question is one of a few topics that Korean legal academy has its novel theories and the legal precedents which are differentiated from Japan or the other western countries. Among the various opinions about it, two remarkable opinions are ‘the restrictive supporter’ and ‘the dissenter’.
Ⅱ. Pros and Cons of Applying General Accomplice Rules on Unpunishable Counterpart
The supporters of applying contend that extent of punishment should be extended in order to eliminate judicial vacuum and fulfill general legal consciousness of people. The scholars who insist restrictive applying of Accomplice Rules suggest that “in the case of ‘misappropriation which requires the existence of a counterparty’s counteraction’, counterpart can be punished as accomplice on the condition that counterparty’s contribution can be estimated as active and positive participation (Kim).”
On the other hand, the dissenters focus on the importance of the principle of “nulla poena sine lege” and the purpose of legislation. Also, the Supreme Court holds that it is not allowed to punish unpunishable doer of Requisite complicity crime by general Accomplice Rules. In the case that the employee of lawyer office abetted the court officer to divulge the list of subjects of arrest warrants, the Supreme Court said the counterparty (employee of layer office) cannot be punished as accomplice of ‘Divulgence of Official Secrets (§127). It was because “the article 127 only punished the divulgence of official secrets and there is no article that punishes someone who is divulged the secrets.”
Therefore, the supporters of applying Accomplice Rules think the dissenters are too formulistic. At the first glance, the advocate is emphasizing practical function of the law and the opponent is stressing fundamental principle. It is because it’s easy to think that only the former opinion has realistic and practical effects while the latter is confined to formality. However, sometime not punishing the one side of crime also has pragmatic function.
Ⅲ. Game Theory and Basu Proposal
We can find the pragmatic operation of inapplicability of general Accomplice Rules on unpunishable counterparty of requisite complicity in respect of the game theory. The ‘game theory’ in economic field, refers to solving problem by analyzing economic units in various game situations. The most popular situation is ‘prisoners’ dilemma’. According to this theory, if you separate two criminals and suggest them incentive to confess, each prisoner must confess their crime even though the most profitable choice is not no say anything.
Kaushik Basu, chief economist of the Indian government, proposed strange policy to fight against bribery: legalizing bribe giving. In other words, he insisted we should punish those who received bribes but let those who gave bribes go free. Besides, the givers will take back the bribes that they gave. This measure will give the bribe-givers incentive to blow whistles after obtaining what they wanted. If this situation occurs repeatedly, the bribe-receivers will be reluctant to accept bribes and the givers’ requests.
The original explanation of how this works is much complicated, but it will be like below if we simplify it. This table assume the situation that the bribe giver chooses to give bribe and the receiver chooses to comply with his request. (The Original version is much sophisticated because it shows whole options that players can choose, including options like ‘giving no bribe’ or ‘betraying giver and doing nothing about request’.)
|Profit in current condition||Receiver|
Table 1. what they gain and lose when both are punished after reporting
|Profit in Basu proposal||Receiver|
Table 2. what they gain and lose when only receiver is punished after reporting
b: amount of bribe (b>0)
c: receiver’s cost of performing request (c>0)
v: giver’s benefit when the request is done (v>0)
F: fine (F>0)
According to the Table1, we can find that receiver’s best choice is not to report (because b-c > -c-F), and giver’s best choice is not to report too (because v-b > v-b-F). In this situation, investigation institute has bare chance to uncover the secret collusion without witness because nobody breaks away from the conspiracy. However, if only the receiver gets punishment while the giver takes the bribe, the situation changes. In Table2, the receiver’s choice doesn’t change but now the giver has great incentive to betray the receiver and report their crime to police. It is because v is bigger than v-b. This means giver and receiver’s alliance became fragile.
This implies that sometimes giving penalty to only one side of double-sided crime can make controlling criminal easier. Without this kind of modification, usually it is extremely hard to reveal bribe giving crime. If the situation of ‘Basu proposal’ is repeated and settled as a norm, bribery will be eradicated eventually. In other words, the inapplicability of general Accomplice Rules on unpunishable counterparty of requisite complicity crime has not only theoretical meaning but also pragmatic advantage. In sequence, now we should consider the use of this advantage.
Ⅳ. Application on prohibition on prostitution: based on ‘Nordic Model’
‘Nordic Model’ means the stance of prostitution control policy, which punishes only purchaser and let seller go. Nordic model is based on the thought that the core reason of prostitution is in ‘demand’, not supply, and recognizes sex sellers as objects of welfare policy, not offenders. ‘Demand’ is always the key factor of forming new markets and industries. Sweden primally adopted this model in 1999, Norway in 2009, Iceland in 2010, and the movement is extending to France, Denmark, Canada and even Netherland.
Many other countries are considering introduction of Nordic Model because it has several definite advantages. First, Nordic Model helps regulating prohibition. Punishing sex sellers makes whole prostitution industry hide in underground, hardening uncovering. Second, Nordic Model stresses that the majority of sex sellers are the victims of poverty and misogynic violence. Therefore, it establishes legal foundation for socially supporting escapee from sex selling industry. Last, Nordic Model ensures the message that “purchasing sex (or human) cannot be allowed” and effectively undermines the market by destructing demand. According to the report of Sweden government in 2010, the number of sex workers decreased about 50% after enforcing new prohibition on sex trafficking. Also, it said the ratio of men buying sex diminished from 13.6% to 7.8%.
As many other crime policies are, of course, this model is not perfect. Nordic Model has a few limitations. For example, Nordic Model scarcely cover the issue about voluntary sex workers and underestimate autonomy of them. However, prostitution market of South Korea is the 6th biggest one in the world and the workers of it are in very poor surroundings without any legal protection. ‘Daemyoung-dong fire incident’ is representative instance. In 2002, 14 female sex workers were dead from fire because they were locked in the lodging during the nighttime. And this was not the last accident that sex workers were dead during illegal confinement. Also, they are exposed to assault and rape defenselessly because they cannot report it to police for maintaining their workplace and livelihood.
Moreover, the inflow of teenagers in prostitution industry is turning into serious social problem these days. According to Ministry of Gender Equality and Family, 11.1% of middle school and high school students have experienced unwanted inducement to sex selling. Narrowing the survey target to those who belong to vulnerable social group, 47.6% experienced sexual meeting including statutory rape, and this tendency is getting worse and worse. All of the policies we made, have it’s own limitation, so we should make choice about what we will get and will give up. Social statics and investigations indicate preventing the market is much urgent than tolerating the various sides of sex selling.
Suppressing demand by punishing only buyer maybe can be one effective measure.
Unlike the general impression of pros and cons of applying the Accomplice Rules of general provisions in Criminal Law to unpunishable counterparty, dissent also has practical and pragmatic function. There are still other various opinions about the question, “Can we punish the unpunishable counterparty of unilateral requisite accomplice by the Accomplice Rules of the provisions of Criminal Act?”, but maybe we can consider the opinion of the Supreme Court more seriously. Slight vacuum of punishment may have bigger profit.
Crime against sexual morality can be the proper area where we can use this method. Prostitution is sexual exploitation and the violence against women. It is just the other side of human trafficking. Moreover, as SNS and online communicating apps are developing fast, approaching to sex selling is getting easier. The number of enticed teenage women who got physical and mental damage from prostitution is increasing. If the classic approaches to decrease prostitution keep failing to abridge demand, we must try different access this time. Therefore, as other many countries, Nordic Model can be considered as a novel alternative or as the last resort.
김성돈, “Begegnungsdelite’ and Accomplice”, 법조협회 최신판례분석, 65권9호, 2016, 550-573.
Dufwenberg and Spagnolo, “Legalizing Bribe Giving”, Vol.53, No.2, Economic Inquiry, 2015, 836-853.
김영주, “성매매 여성 처벌, 이대로는 안된다”, 오마이뉴스 2014.09.24, 웹사이트, 2021.07.21.
전소영, “[성매매특별법 16年史] 수요 억제·성매매 여성 불처벌 ‘노르딕 모델’이 필요하다”, 투데이신문, 2020.10.02, 웹사이트, 2021.07.21.
여성가족부 보도자료, “2019년 성매매 실태조사”, 형사정책연구원, 2020.06.15.
 김성돈, “Begegnungsdelite’ and Accomplice”, 법조협회 최신판례분석, 65권9호, 2016, 550-573.
 대법원 2017도4240.
 Dufwenberg and Spagnolo, “Legalizing Bribe Giving”, Vol.53, No.2, Economic Inquiry, 2015, 836-853.
 김영주, “성매매 여성 처벌, 이대로는 안된다”, 오마이뉴스 2014.09.24, 웹사이트, 2021.07.21.
 전소영, “[성매매특별법 16年史] 수요 억제·성매매 여성 불처벌 ‘노르딕 모델’이 필요하다”, 투데이신문, 2020.10.02, 웹사이트, 2021.07.21.
 여성가족부 보도자료, “2019년 성매매 실태조사”, 형사정책연구원, 2020.06.15.