경찰관의 직무 수행으로 인한 형의 감면

Abstract

The purpose of this study is to interpret Article 11-5 of the Act On The Performance Of Duties By Police Officers which was added recently. The subject clause was created to ensure that police officers are not discouraged by fears of being punished and can actively perform their duties. However, as many restrictions were added to dispel concerns about police officers' abuse of authority, the content is complex and somewhat difficult to interpret. Procedurally, it may apply where a police officer is charged and convicted. Substantially, it requires that all three requirements be met: 'emergency situation of criminal execution', 'acts of police officers performing their duties', and 'occurrence of harm to others' by performing their duties. In particular, it can only be applied when there is no intentional or gross negligence on the part of a police officer. As such, it is expected that there will be practical controversies surrounding the scope of its application. To be faithful to the literal interpretation, it can only be applied to cases where the police officers' performance of their duties causes criminal damage through simple negligence. However, considering the purpose of the legislation and the fact that it is a provision that is in favor of the accused, it is necessary to allow the analogous application of the subject clause as an exception. The effect of the application of the subject clause is that the sentence is arbitrarily mitigated or exempted. The rationale for this mitigation or exemption of sentence can be found in the reduction of criminal liability and the necessity of criminal policy to achieve the purpose of legislation. There are two reasons for the reduction of criminal liability. First, since it presupposes an urgent situation, the possibility of legal action is lessened. Second, the anti-legal attitude is weakened in that it is based on the motive to perform public duties, such as prevention and suppression of crimes or arrest of criminals.