임용권 행사와 직권남용권리행사방해죄 ― 대법원 2019도17879 판결을 중심으로―

Abstract

Recently, abuse of authority has attracted strong social attention. Discussions and arguments about this offence are becoming more active as they are involved in various political events. The purpose of this study was, therefore, to explores abuse of authority from a new perspective, focusing on the exercising authority for appointment by head of local government. A case law determined that the abuse of authority is established when "a public official who has a general job duty abuses one's authority.' A general job duty is a fairly abstract concept, and the Supreme Court has not provided clear guidelines on its interpretation. This ambiguity brought the risk of being subject to arbitrary judgment in the application of the offense of abuse of authority. And based on the logic of “No authority, no abuse,” the case law determined that the illegal and unjust acts of public officer without authority did not constitute abuse of authority. The logic of case law has a problem that the exercise of the authority of a person without authority is not punishable even though it is a more serious crime than the exercise of the authority of a person with authority. The redefinition of the abuse is needed. Meanwhile, the case law interprets the exercise of authority targeting private individuals has a greater chance of establishing an offense of abuse of authority than in the case of those targeting public officials. In the case of the Supreme Court 2019do17879, the subject of this study, the head of the local government ordered a working staff to "recommend" a specific person for promotion, and the personnel committee made a decision following the recommendation. This is because the independence of the Personnel Committee is structurally vulnerable. The specific expression by the head of the local government puts a considerable pressure on the members of the Personnel Committee and disables the committee practically. In this case, the Supreme Court accepts the existing interpretation for offense of authority of abuse. In addition, the Supreme Court says authority of head of local government is very wide. So the Supreme Court rejected the establishment of abuse of authority. This ruling, however, failed in reflecting the reality and more forward-looking ruling in the future is expected.