‘위법하지만 구속력 있는 명령’에 복종한 행위의 위법성 판단

Abstract

Acts of public officials conducted in accordance with their superiors are justifiable acts as legal acts and the illegality is precluded. If an order of a superior requires an illegal act, the public official should not obey the order. However, there is a view that the binding power of the order can be acknowledged in the cases where the order requires an act of a slight violation or the order is an absolute order from the superior. This view is the theory that acknowledges the concept of ‘illegal but binding orders’ and the illegality of acts conducted in accordance with such orders can be precluded. This paper concretely examined the fact that the ‘illegal but binding orders’ are conceptual contradiction. Legitimate defense should be acknowledged against illegal acts, but such legitimate defense cannot be acknowledged if illegal but binding orders are acknowledged. If the illegality of an act is precluded, the illegality should be precluded retroactively; however, this concept cannot retroactively preclude illegality. This paper presented a basis of an argument that acts intended to resist against illegal orders in order to go back to ‘legitimate’ law and order may rather become criminal acts (crimes of insubordination or disobedience). In addition, this paper also concretely examined the grounds for the acknowledgment of ‘illegal but binding orders.’ In conclusion, under the South Korean criminal law system, ‘illegitimate orders’ cannot have a binding power, even if they require acts of a slight violation of the benefit and protection of the law; all in all, such orders are illegal.