직권남용과 성폭력 2차가해 - 대법원 2020.1.9. 선고 2019도11698 판결 (직권남용권리행사방해)

Abstract

This essay aims to review the decison of the Supreme Court on the Crimes of abusing official authority. According to the article 123 of the Criminal Act, a public official who, by abusing his or 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 by imprisonment for not more than five years, or fine not exceeding ten million Korean won. In the year of 2020, the Supreme Court ruled by its decision 2019do11698, that the director of Directorate of Public Prosecutors, Ministry of Justice, did not abused his offcial authority to causes the person under his command to make personnel decision against the victim of sexual assault by the very director, because the decision had not violated any principles or provisions on the personnel management of public prosecutors, and thus had not cause any person to perform the conduct which is not to be performed by the person. Such not positive decision on the criminality of the secondary victimization, or strict interpretation on the provision of he Crimes of abusing official authority does have a problem that did not consider what lies behind the improper but not-illegal personnel decision against the victim : the secondary victimization in the case of sexual violence.