직권남용행위를 집행한 하급 공무원의 면책범위 ―대법원 2020. 1. 30. 선고 2018도2236 전원합의체 판결―

Abstract

The judgment on issue is on the facts of so-called the “blacklist” case. As is well known, the Defendant, the presidential chief of staff, was convicted of 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 ( ․ ․ ․ ).” He was charged on the facts that he had ordered the lower-public officials “to exclude the designated applicants from a number of projects” “on the grounds of the ideological orientation or political stance of the individuals or organizations applying for the government’s support fund”. The majority opinion of the Supreme Court as follows: the defendant “force[s] the employees of each foundation to perform an act as illustrated in the facts charged, as there is no basis for statutory duties imposed upon” and the said employees “may not be considered to have performed a non-obligatory act as stated in the crime of abusing authority and obstructing another from exercising one’s right.” It is hard to understand the rationale of the majority opinion, because according to its interpretation it neglects the ‘real’ victims who were excluded from financial supports due to the final acts caused by the order, which comprised the offense of abuse of authority, and forces the lower-level public officials who made the acts in the process of obey these illegal orders. The majority opinion, I believe, confuses the legal principles for exonerating the criminal responsibility of lower-public officials, who cooperated in the investigation on the offense of abuse of authority. From the viewpoint of the rule of law, it is desirable should be considered separately between the requirements for the establishment of offenses of abuse of authority should be reviewed according to the requirements its own and the legal rule for the exoneration of lower-level public officials who obeyed orders and “to exclude the designated applicants from a number of projects” in the process.