작성권자를 보조하는 공무원에 대한 허위공문서작성죄의 간접정범 성립 여부와 관련문제

Abstract

Article 227 (Preparation, etc. of False Public Document) establishes when “public official prepares falsely or alters any document or drawing with the intention of use, in connection with his/her duties”. While criminal law in principle does not punish moral forgery, the law treats forgery of official records as an exception by enforcing Article 227 for the purpose of maintaining the public’s credibility towards official records. There is a question as to whether Article 34 (Principal through Innocent Human Agent and Aggravation of Punishment for Particular Instigation or Aiding and Abetting) triggers via Article 227. Many scholars and case law support that because Article 227 is a real status crime, the statute cannot criminalize for aiding and abetting the individuals who without authority alter official documents. In other words, Article 227 operates under the principle that only individuals with the authority to prepare a document are punishable for false preparation. Additionally, Article 228 (Untrue Entry in Officially Authenticated Original Deed) punishes abettors to preparation of false public documents by imprisonment for not more than five years. Given that Article 228 has lighter sentences than Article 227, Article 227 cannot establish aiding and abetting to individuals who without authority have falsified documents. However, scholars and case law do not come to a consensus when it comes to punishing public officials who assist falsification of documents for other public officials with authority to alter documents. Scholars argue that assisting public officials do not have the official authority to alter documents, and therefore cannot be charged under aiding and abetting. In contrast, courts have applied Article 227 to assisting public officials. Courts have not yet explicated on the rationale behind these rulings. It is worth noting that the language of Article 227 sets its scope to “a public official who prepares falsely or alters any document or drawing,” not a public official with an authority to alter a document. Here, I argue that scholars should not wrongly limit the scope of the statutory language of Article 227 by conflating the two kinds of public officials. “A public official [who] prepares falsely or alters any document or drawing” should be inclusive of any public officials who remotely participate in preparing a document. The suggested interpretation extends Article 227 to assisting public officials. The inclusion of assisting public official under the statute in turn invalidates the premise that aiders and abettors cannot be punished under Article 227 due to its status as a real status crime. Thus, public officials who indirectly assist falsification of documents must qualify for aiding and abetting of Article 227. If assisting public officials are formally recognized as aiders and abettors, another question arises as to whether Article 227 or Article 228 should apply in punishing assisting public officials who submit falsified documents to another public official. In this case, the assisting public official who de facto falsifies the documents should qualify under Article 227 instead of Article 228.