Criminal Liability in Negligent Cases That Can Be Evaluated as Either a Commission or an Omission — Focusing on Supreme Court of Korea Judgment 2022Do16120 —
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This article examines the proper handling of an act that can be evaluated as either a negligent commission or a negligent omission, focusing on a recent Supreme Court of Korea judgment (2022Do16120, delivered on March 9, 2023). I argue that the Court’s decision primarily functions as an expedient measure intended to fill a potential gap in liability. To advance this argument, this article analyzes two critical aspects of the case: first, that the criminally punishable act of each defendant amounted to no more than a single act, and second, that the case involved concurrent negligence for which individual causation remained unestablished. Based on these points, I contend that the Court’s approach—resolving the case by finding a negligent omission—should be rejected in principle. This is because when a single, inseparable act can be construed as either a commission or an omission, such an approach leads to result liability. The basis of this argument is that a breach of the required duty of care is inherent in any negligent offense and is also a prerequisite for an omission offense. Thus, especially in cases of concurrent negligence, this framework grants courts the discretion to find a negligent omission if factual causation is uncertain. Conversely, courts may find a negligent commission if the defendant’s guarantor status (Garantenstellung) is unclear. Furthermore, I argue that the Court’s determination of causation for the negligent omission was unjustified in this case. The requirements for negligent commission and negligent omission largely overlap. The only practical difference is that negligent commission also requires that factual causation be established. Therefore, if a single, inseparable negligent act can be evaluated as either a commission or an omission, it is reasonable to treat it as a negligent commission and, accordingly, to require proof of factual causation between the act and the result.
Abstract
This article examines the proper handling of an act that can be evaluated as either a negligent commission or a negligent omission, focusing on a recent Supreme Court of Korea judgment (2022Do16120, delivered on March 9, 2023). I argue that the Court’s decision primarily functions as an expedient measure intended to fill a potential gap in liability. To advance this argument, this article analyzes two critical aspects of the case: first, that the criminally punishable act of each defendant amounted to no more than a single act, and second, that the case involved concurrent negligence for which individual causation remained unestablished. Based on these points, I contend that the Court’s approach—resolving the case by finding a negligent omission—should be rejected in principle. This is because when a single, inseparable act can be construed as either a commission or an omission, such an approach leads to result liability. The basis of this argument is that a breach of the required duty of care is inherent in any negligent offense and is also a prerequisite for an omission offense. Thus, especially in cases of concurrent negligence, this framework grants courts the discretion to find a negligent omission if factual causation is uncertain. Conversely, courts may find a negligent commission if the defendant’s guarantor status (Garantenstellung) is unclear. Furthermore, I argue that the Court’s determination of causation for the negligent omission was unjustified in this case. The requirements for negligent commission and negligent omission largely overlap. The only practical difference is that negligent commission also requires that factual causation be established. Therefore, if a single, inseparable negligent act can be evaluated as either a commission or an omission, it is reasonable to treat it as a negligent commission and, accordingly, to require proof of factual causation between the act and the result.