직무유기죄의 성립범위에 관한 연구 -기존 해석론에 대한 비판과 그 대안-

Abstract

This paper examines Article 122(Dereliction of Duty) Criminal Act of Korea, which provides as “A public official, who refuses, without just excuse, to perform or abandons his duties shall be punished by penal servitude or imprisonment for not more than one year or suspension of qualifications for not more than three years.” The purpose of this Article is to punish the public officials who refuse to fulfill their duties, thereby tending to incur serious social harms. In this paper, the author aims to provide more detailed interpretative guidelines of the Article, since it has long been criticized by the scholars for such vagueness and broadness of its scope that are likely to cause the unpredictability of conviction. The conclusions are as follows. First, the Dereliction of Duty(§122) should be understood as a crime committed only by omission(so-called delicta omissiva), not as one by either commission or omission. So it can only be penetrated through breach of the “duties.” Second, the “duties’ prescribed in this provision could not be construed as any tangible object that the public officials could ”refuse […] to perform or abandon,“ as is often misunderstood by the scholars. Rather they mean certain circumstances, in which the public officials are to be urgently obliged ”to perform or abandon“ their specific duties. Finally, the omission approach of the Article shall make it easier to constrain its scope, and thus can give the public officials more foreseeable and reliable behavioral standards by which they can abide.