업무방해죄의 보호대상으로서의 업무의 범위에 관한 연구- ‘반사회성’에 대한 법원의 판례를 중심으로 -

Abstract

Art. 314 of the Criminal Code says that the interference in other personnel's work with the power and other means is subject to punishment. And ‘work’, the object of the protection is defined by legal theory and criminal cases as profession or continuative work to be performed in office on the basis of social status. Also unrelated to civil rights or administrative authority's approval, 'work' is lawfully admitted in this respect if it is done with quiet, peaceful conditions. On the other hand, the Supreme Court has declared it can't be admitted as 'work', if the work has high illegality and results in exceeding the so-called antisociality standard, But there have been some lower court’s cases declaring opposite judgement. Antisociality theory, which the Supreme Court used for denying establishment 'interference in work crime', is rather improper for normative standard because it just connects lots of indefinite notions. Moreover, it should be reconsidered because the Supreme Court sets the scope of indemnity up too broad and doesn't consider the spirit of legislation. Also, the ruling standard lacks uniformity in some cases. For such reasons as mentioned above, there can be possibilities that agitation of the system of social value might arise and citizens be given normative confusion by the antisociality theory. Considering the prohibition of the private self-help since middle ages, and in accordance with our value system of the criminal code, it is proper to deny the establishment of 'the interference in work crime' in some cases on the ground of illegality theory instead of the antisociality theory.