위계업무방해죄 적용상의 문제점 및 제언 — 관련 판례들의 비교검토를 중심으로 —

Abstract

According to article 314 of the Korean Criminal Code, a person who obstructs others' operation by such means as circulating false information, trickery, or coercion is punished by imprisonment of less than 5 years or by a fine less than 15,000,000 won. This can be divided into 'obstructing operations by trickery' and 'obstructing operations by coercion', and this research is focused on the controversy over the former and its solutions. Several Supreme Court decisions of Korea, related to the obstructing operations by trickery, seem to be not consistent with one another, with his attempt to prohibit the excessive application overpunishment. It is apparent that the requirements of the offense, such as the term 'operations,' are too broad in its definition. Moreover, the Court defines such offense as 'offense provoking general danger,' which consequently enlarges the spectrum of activities governed by the article 314. The Court’s interpretation of article 314 accompanied by the people’s growing consciousness of constitutional rights will subsequently result in including activities that were formerly excluded from the requirements of article 314 as the subject governed by the article. This will only result in more oppression on people’s right of action. In order to overcome the problems innate in the article itself, the requirements of the offense must be clarified and made stricter. The ways to do so are as follows. First, the offense of obstructing operations must be understood as an offense provoking specific danger rather than general danger. The conducts that obstruct the operations of others, therefore, should be punished only if specific risk of danger was caused by such conduct. Second, the article 314 should be only applied to the cases of obstructing 'financial' operations.