무단업로드 된 저작물에의 링크 글 게시행위에 대한 방조범 처벌 가부 - 대법원 2021. 9. 9. 선고 2017도19025 전원합의체 판결에 대한 형법의 이원적 불법론의 시각에서의 비판을 중심으로 -

초록

This article aims to examine the problems revealed in the subject judgment from the perspective of the dual illegality theory of criminal law. As a result of analyzing the subject judgment, it was confirmed that the subject judgment views the crime of violation of Article 136, Paragraph 1 of the Copyright Act, which is established by uploading copyrighted works without permission, as a continuous crime, and expands the scope of the establishment of an accessory crime that the Supreme Court has previously ruled. However, from the perspective of the dual illegality theory of criminal law that simultaneously considers the illegality of the act and the illegality of the result, the conclusion and ratio decidendi of this judgment is clearly unfair. The fact that this article does not go so far as to examine the overall theoretical issues of criminal law that appear in the Copyright Act itself or its application can be considered a limitation of this study. It is hoped that this article will provide an opportunity to examine these points further and promote mutual exchange of opinions between the fields of copyright law and criminal law in the future.

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