보증인지위의 발생근거로서의 선행행위 - 대법원 2023. 7. 27. 선고 2023도6735 판결 -

Abstract

The main issue in target judgment is whether the defendants' conduct satisfies the elements of the offenses of omission and negligence. While the lower court explicitly held that the defendants could be found to have the requisite status of a guarantor, the Supreme Court did not expressly find that the defendants' conduct met the requirements. Although the lower court ruling made an explicit judgment on the status of guarantor and duty of conduct, the Supreme Court ruling only mentioned the requirements of negligence without making an explicit judgment on the status of guarantor or duty of conduct. With respect to the requirement of an antecedent act as the basis for a guarantor status, the Appeals Chamber's judgment is significant in that it explicitly states that it does not require the antecedent act to be unlawful, but this approach is problematic in that it may result in an overly broad definition of the subject matter of the offenses of omission. The target judgment does not address whether the defendants' conduct satisfies the requirements of status of a guarantor, so it is unclear whether it adopts the same attitude as the Appeals Judgment that the antecedent conduct does not have to be unlawful. If the defendants' conduct in this case does not meet the antecedent act requirement, it is difficult to find a basis for recognizing the guarantor status if the original meaning of the formal theory is followed. However, according to the attitude of the majority theory, which combines the views of the formal theory and the substantive theory, the defendants can be recognized as having a duty of conduct. The defendants voluntarily and effectively took over the victim, creating a protective relationship between the victim and the defendants who took over the victim. Therefore, the defendants can be found to be in a position of guarantor status and the resulting duty of conduct.