부진정부작위범의 실행의 착수시기 - 대상판결 : 대법원 2021. 5. 27. 선고 2020도15529 판결

Abstract

This decision is quite noteworthy in that it is the first case to present specific criteria for the commencement of the commission in relation to the establishment of an attempted crime of an omission that has not been dealt with in practice. Although this decision presented the requirement of ‘a situation in which the risk of occurrence of a componentrequired result is materialized’ as a criterion for commencement of the commission in the omission, it is difficult to conclude that it is a valid criterion in the following points. First of all, the criterion presented by this decision has a fundamental limitation in that it accepts the interpretation theory of German criminal law, which is significantly different from our criminal law, as it is. Unlike the German Criminal Code, which directly stipulates the duty to act, which is the basis for the crime of omission, as ‘prevention of consequences’, Article 18 of the Korean Criminal Code stipulates ‘prevention of danger’. Therefore, in the interpretation theory of Korean criminal law, the act of execution of the crime of omission should be related to the occurrence of risk, not the occurrence of consequences. The act of omission can be said to be the 'act that creates danger' that is the possibility of the occurrence of a result, and the initiation of execution, which can be said to be the beginning of the act of execution, should be regarded as the 'beginning of the act that creates danger'. Since the Supreme Court, including this decision, identifies the crime of breach of trust in business as a specific dangerous crime, the criterion presented by this decision can be said to be ‘specification of the risk of occurrence of danger’. However, the former risk is the risk of property damage, but the latter risk is only the risk that the omission as an action that has the possibility of causing the risk of property damage will continue. Therefore, it is not necessary that the risk of the result occurring is imminent, and the criterion for this decision can be said to be the criterion close to the point of the completion of the crime, not the attempted. Rather, in the case of this decision, the actor went beyond staying in a state of temporary omission and neglected his duty and acted out of his position. This is the ultimate failure of the task assigned to the agent. Therefore, it can be seen that the actor's action is completed normatively in relation to the risk of occurrence of risk due to omission.