직권남용권리행사방해죄-공무원의 직권남용을 중심으로

Abstract

The establishment of the obstruction of the exercise of right varies according to the legislation, academic theory, and precedents. In Louisiana, a state of the United States of America, the willful misconduct or neglect of duty by public officers or public employees is enough to constitute malfeasance in office. The obstruction of theexercise of right in Korean criminal law is established when government officials force others to do what isn’t their duty or when officials hamper others' exercise of right. If legal interests can be seen as a fair exercise as a function of the government, then the obstruction of the exercise of right is fulfilled when there is an infringement on the just exercise of the function of the government. Also, if the freedom and rights of individuals are considered as legal interest, then the obstruction of the exercise of right is established when both of them are infringed as well. There are disputes on to what extent do legal interests need to be protected. Some say that only protection from endangering offenses which requires actual infringement on legal interests is needed to constitute crime, while others see infringing offenses, in other words, the mere possibility of infringement of legal interests is enough to constitute crime. There are conflicting theories on what malfeasance in office consists of. Some argue that it is only applicable when the right and freedom of others is restricted, while some claim that practically burdening or disadvantaging others is enough. Others believe that illegally exercising one’s authority to exert influence on others can be seen as malfeasance in office. Precedents in Korea acknowledge that there have been malfeasance in office when public officers or public employees use their authority to force others to take actions or cease their exercise of rights within the public officers’ general scope of responsibility. However, when the forced actions or cessation of exercise of rights are outside their general scope of official responsibility, then the act cannot be considered to constitute malfeasance in office. Following such precedents, public officers’ or public employees’ actions without authority are not crimes, while actions within their authority are crimes even though the former should be considered more illegal than the latter. On the above cases, precedents have ruled out the constitution of obstruction of crime when public officers’ or employees’ actions when the actions they intended were not included in their scope of authority. However, considering that public officers and employees were able to obstruct rightful exercise of rights or force actions due to the authority vested in them, not only should the coercion be considered a result of their scope of authority, the constitution of obstruction of right must be acknowledged as well. The constitution of obstruction of the exercise of right needs to be judged by more detailed standards on malfeasance in office than the cases which acknowledges constitution of malfeasance in office.