유기죄의 법률상 보호의무에 부부간 부양의무 포함 여부

Abstract

The Subject of crime of abandonment is limited to whom one has a legal or contractual duty to protect under Article 271 Paragraph 1 of the Criminal Act. This paper will first examine why the subject of the crime of abandonment is limitedly stipulated through the legislative history of the crime of abandonment, and then examine whether duty to furnish support of husband and wife constitutes a legal duty of protection based on theories and domestic and overseas precedents. The conclusion of the subject case is reasonable in that there is no reason to exclude the marital support obligation provided by the Civil Act from the legal duty of protection in the crime of abandonment. However, while the Supreme Court seems to be considering the substantive aspects of the argumentation, it mainly focused on the validity of marriage, which pertains to the structural aspect, thereby providing insufficient argument with respect to the substantive (criminally) aspect. In the subject case, there is a reason that the prosecutor not indicted the defendant of the crime of abandoning mentally ill persons under the Act on the Improvement of Mental Health and the Support for Welfare Services for Mental Patients (hereinafter “Mental Health Support Act”), a special law, from the prosecution stage. However, in the future, the prosecutor is expected to accuse defendant not only the crime of abandonment but also the crime of abandoning mentally ill persons under the Mental Health Support Act. It is expected also the court to order the amendment to the bill of indictment to change the indictment into the crime of abandoning mentally ill persons under the Mental Health Support Act. The Supreme Court judges need to clarify its stance that it would determine the person holding a legal duty of protection in the cases involving the crime of abandonment under the Criminal Act from the viewpoint of the comprehensive consideration. In my opinion, one way to address the current controversy to some extent would be to reference the Swiss- and Chinese criminal law that explicitly states the subject of the crime of abandonment as a person holding a duty to furnish support, and make amendments to the crime of abandonment as an intermediate step to hold accountable a person having neglected his/her duty to furnish support under the Civil Act.