직권남용권리행사방해죄에서 ‘직권남용’요건의 판단 (대법원 2022. 4. 28. 선고 2021도11012 판결)

Abstract

This article focuses on the Supreme Court 2022. 4. 28. Decision 2021Do11012. This Decision dealt with the Abuse of Authority (Article 123, Korean Criminal Act), which provides that “A public official who, by abusing his/her official authority, causes a person to perform the conduct which is not to be performed by the person, or obstructs the person from exercising a right which the person is entitled to exercise, shall be punished (...)”. The holding of the Court is that the acts of the defendant, who was then the Chief Criminal Chief Judge of an appeal court, engaged in the trials of the appeal courts by supervising or instructing the decisions(that is, by “abuse of judicial administrative authority”), were “unjust or inappropriate judicial interferences”, but his acts could not be established as ‘by abusing own authority’ in the crime of Abuse of Authority, since he does not have the “general authority of office” to engage in the trials. It is particularly noteworthy in the Decision that the Supreme Court has introduced a new approach in interpreting the requirement of “by abusing own authority”, by considering ‘authority’ and ‘abuse’ separately. The Supreme Court has been developing rulings in which both of these requirements were comprehensively examined. In the traditional approach, the requirement of “general authority of office” played a primary role in the exclusion of acts with no character of “authority of office”. However, the reasoning and conclusion set out in this Decision based on the new approach are not wholly satisfactory. Among other things, the Supreme Court identified the defendant’s acts as so-called “judicial interference” and interpreted them as part of Actus Reus. There seems to be confusion between acts and consequences in this reasoning, for his acts of engaging in the trials made it possible and finally resulted in the “judicial interference”. This Decision belongs to the judicial decisions dealing with the case of “abuse of judicial administrative authority” or “judicial scandal”. Given the significance of the issue and the value of public confidence in the judicial system, more detailed arguments and more acceptable conclusions would have been required.