허위진술에 의한 위계에 의한 공무집행방해죄의 성립여부와 처벌범위

Abstract

As false statement against public officials intends to serve a specific purpose, such as causing misconceptions, mistakes and dismissal for officials, obstruction of performance of official duties by fraudulent means must be qualified as a crime. Nonetheless, whilst false statement against public officials is eligible as a form of obstruction of performance of official duties by fraudulent means, this eligibility does not indiscriminately extend over all forms of false statement. Correspondent to false statement must be an official either with the authority to investigate its factual accuracy or with the responsibility to do so. In cases that an individual prompts an official to investigate through the individual’s voluntary statement, verbal statement is sufficient. However, in cases that false statement gets passively established due to government needs, thereby requiring the premise of certainty, consistency, and assurance, false statement must be in writing, with signatures or one’s handwriting. Meanwhile, if false statement takes the form of simple denials to questions, despite denials qualifying as false statements, obstruction of performance of official duties by fraudulent means does not get established. Simple denials to actuality of events do not form coherent and practical content, and are considered only as a passive form of refusal of statement, and therefore is categorized as refusal of statement. Criminal Act encompasses process crimes, which relies on judicial function of benefits and protection of the law. Process crimes that pertain to false statement include perjury, destruction of evidence, harboring criminal, false accusation, and more. Since judicial function to process crimes must be considered government affairs, the relationship between process crimes and obstruction of performance of official duties by fraudulent means becomes problematic. With regards to defendant, recognition of refusal of statement deprives a defendant from getting recognized as a witness. Regardless, should a defendant choose to actively give false statements, the statements cannot be counted as a form of refusal of statement, and therefore, are eligible as obstruction of performance of official duties by fraudulent means. False statements must not be considered destruction of evidence, as evidence itself must be destructed for crime of destruction of evidence to be established. However, false statement performed in order to destruct evidence extends over the boundaries of passive destruction of evidence, and is considered obstruction of performance of official duties. Therefore, obstruction of performance of official duties by fraudulent means gets established. In harboring criminal through the means of false statement, self escape can be a point of contention. However, if harboring criminal by false statement satisfies corpus delicti, harboring criminal does establish itself as a crime. In such case, punishability gets acknowledged, and criminal law does not exclude these actions in determining prerequisites. Further, once harboring criminal does get established, its special relationship with obstruction of performance of official duties by fraudulent means disqualifies the later to be recognized. False statements by false accusation and obstruction of performance of official duties by fraudulent means in principle demonstrate close resemblances. When false statement consists of false accusation, however, it leaves no room for obstruction of performance of official duties by fraudulent means to be established. Not only the special relationship gets confirmed, but also statutory punishment for false accusation is more severe than obstruction of performance of official duties by fraudulent means.