작위행위와 작위의무의 구별과 과실범의 주의의무 ― 대법원 2023. 3. 9. 선고 2022도16120 판결 ―

Abstract

The Supreme Court sentenced on March 9, 2023, 2022 Do 16120 shall examine whether each of the accused criminally charged has established a true crime only after judging the logical issues such as the distinction between the act of conduct and the duty of conduct, and the basis for the occurrence of the duty of conduct, etc. However, the Supreme Court concluded that the common negligence was competed each other and each true crime was established. In other words, it is not a common offense of negligence, but a simultaneous offender in which the single offense of the negligence crime is overlapped and a causal relationship is found. As a requirement for the establishment of a negligent offender, we will first look at the criteria for determining whether the duty of care is an act or omission, and in particular, examine the substance of the guarantee obligation that is distinct from the duty of care in the offender of omission. As a requirement for the establishment of Article 18 of the Criminal Act, we would like to examine whether it is possible to generate a guarantee obligation if the preceding act is a violation of the duty of care or an offense, and if this is recognized, what legal relationship should be between the violation of the duty of care of the first act and the subsequent violation of the duty of care of the omission offender. In this case, the issue is which of the violations caused by the act of the duty of care not to throw the lit cigarette or the omission of the duty of care to check whether the discarded cigarette has been completely extinguished.