무고죄의 보호법익과 각칙상 지위에 대한 비판적 고찰 －유기천 교수의 국가적 법익설을 단서로 삼아－

Abstract

The benefit and protection of the law of calumny has been understood dualistically. An eclecticism that considers national benefit and protection of the law which is a country’s proper function of judicature judgment as a major benefit and protection of the law and incidentally and indirectly protects personal benefit and protect of the law such as legal safety of the falsely accused has been accepted as a conventional wisdom and a precedent for over 50 years. Such a eclecticism seems to import a Germany’s theory through Japan’s calumny. Korea’s calumny differs from Germany and Japan’s legal penalties. Other countries’ legal penalties on calumny are higher than on perjury protecting a country’s judgmental function. However, Korea’s upper limit of legal penalties on perjury or destruction of evidence are two times higher. Thus, to establish the benefit and protection of the law of Korea’s calumny, its content needs to be different from the eclecticism of Germany and Japan protecting either national benefit and protection of the law or personal benefit and protection of the law selectively. There is no disagreement in establishment of calumny on the grounds of approvals by the falsely accused or abetting false accusation against oneself in the eclecticism and precedents in Korea. It means that calumny is established without a violation of personal benefit and protection of the law. On the contrary, can individuals’ legal safety be in danger while there is no violation of national benefit and protection of the law? It cannot take place according to Korean legal provisions related to calumny. Thus, the substance of Korea’s eclecticism should be considered as a theory to judge the establishment of calumny on the basis of national benefit and protection of the law. The falsely accused which a criterion that has been put up when judging the number of crimes of calumny by eclecticism is not accurate. That is because it does not judge the number of crimes based on benefit and protection of the law and there is no reason to put up secondary benefit and protection of the law as a standard of judgement. Therefore, the judgment on the number of crimes of calumny by eclecticism and the judgement by national benefit and protection of the law lead to the same conclusion according to the general theory of the theories of the number of crimes. Calumny is not to protect a country’s judgmental function itself but people who could be in danger if such a function does not work properly. That relationship between national benefit and protection of the law and personal benefit and protection of the law is common to every crime classified as criminal offenses related to national benefit and protection of the law in the present penal code. Therefore, it is appropriate that the benefit and protection of the law of calumny is also understood as national benefit and protection of the law. However, if calumny is understood as national benefit and protection of the law, its relation with obstruction of justice by deception becomes problematic. Such a problem has not been discussed due to a common notion which understands the two crimes’ benefit and protection of the laws differently, and they become crimes protecting the same benefit and protection of the law. The judiciary has recognized the responsibility to uncover truths of investigative agencies in only obstruction of justice by deception, not in calumny. Because of this, a phenomenon of distortion that calumny of which legal penalty is much higher is constituted easier has been tolerated. Apart from criminal law, there is a　number of special laws which have separate calumny according to crimes regarded as calumny and they are contradictory to the basic principle of law of calumny, so they need to be deleted.