일반교통방해죄의 육로의 개념에 대하여

Abstract

For a long time, the definition of a public pathway under Article 185 of the Criminal Act, referring to "a land route widely used for the general circulation of the public, regardless of ownership, rights of passage, or the number of pedestrians," has been generally accepted. However, the paper raises doubts about whether this concept accords with reality. It explores the question of whether a path that has not been officially designated as a road but has been informally used as such (current situation road) can be considered a public pathway. Moreover, it questions the validity of investigative agencies determining the status of a pathway in cases where the accused strongly disputes its classification as such and whether such determinations can influence civil court proceedings. This paper attempts to address the legal issues debated during a trial that reached the Supreme Court, analyzing them based on a real case. Although many years have passed since that case, the unresolved questions still remain. The study suggests that a public pathway, defined as a route widely used by the public, should be used by an unspecified majority rather than a specific majority or unspecified minority. Furthermore, it should be in a state of free use for more than 20 years. This interpretation accords with the logic of acquisition prescription in civil law and minimizes infringement on an individual's property rights, as protected by the constitution. In particular, if the accused disputes that their land is not a public pathway, the investigative agency should not determine that the land is a public pathway and proceed with the case through a summary order. At least, he or she must be given the opportunity to receive a formal trial. Even at a glance, if there is a dispute over the passage between nearby landowners, it is recommended that the dispute be viewed first as a civil issue regarding the right of passage over the surrounding land, and that a civil judgment be first obtained as to whether a universal right of passage worthy of being referred to as a public pathway exists, and such judgment should take precedence. If not, non-indictment if possible is consistent with the last resort of criminal law. In the case of existing roads where the road is not clearly designated or announced by a state agency or land specification, the intervention of criminal law should be limited to a minimum, and when it is a problem between nearby landowners, such necessity becomes even greater. Starting from this question, the main content of this paper is to reinterpret the concept of public pathway for general traffic obstruction crimes and to present alternatives on how investigative agencies and criminal courts should approach the punishment of general traffic obstruction crimes.