직권남용죄의 성립요건에 관한 검토

Abstract

Recently, the Supreme Court of Korea actively applied the Abuse of Authority, Article 123 of the Korean Criminal Act to punish former high-ranking officials. Some commentators argue that the interpretation of this provision given by the Supreme Court could easily become an instrument for political suppression through “willful interpretation and application” after so-called “regime change”. These arguments of political misuses are widespread without careful considerations of this provision and the decisions of the Supreme Court. Against the arguments, this article deals with the requirements of Abuse of Authority. The legislative intentions expressed in Article 123 could be identified through its history and structure of the Criminal Act. The Abuse of Authority was formulated after Article 193(Abuse of Authority by Public Officers) of the Penal Code of Japan(1907) and Article 192 of the Japanese draft, named as Kaise-Keihou-Kaan(改正 刑法假案, 1940). Further, the drafters of the Korean Criminal Act added the qualification clause, that is, aggravated punishments clause of public officials’, Article 135, which did not appear in the Japanese precedents. This provision originated from Article 124 of Criminal Code of Republic of China(中華民國刑法典, 1935), along with Dereliction of Duty(Article 122, Korean Criminal Act). Legislators deliberately designed this structure to deter the wrongdoings of public officials by punishing them severely with higher penalties. Now that the legislators’ intention and legislative structure of the provision are different from its precedents, it seems natural and desirable to have developed the different, but reasonable interpretations that could make Abuse of Authority more effective by focusing on the legislation to control and penalize the public officials’ wrongdoing caused by abusing their authorities, while guaranteeing predictability in its application at the same time. In the recent Supreme Court decisions, there are several cases in which the first requirement of Article 123 is broadly construed, while the second narrowly. The first requirement here is “by abusing his/her own authority” and the second ‘to cause a person to perform the conduct with no obligation’ or ‘to hinder a person from exercising entitled right’ (so-called “obstruction of exercising right”). The Supreme Court’s ruling of Article 123, may be acceptable in consideration of the current provision, because it allows the Abuse of Authority to be applied within reasonable and predictable scope of the provision. However, since there is also the weakness that political judgments of the judiciary should be more likely to intervene with this interpretation, it is essential to narrow its wide possibility of interpretations and thus to enhance its predictability of this provision. Hence, this provision needs to be revised more specifically, introducing more detailed requirements for abuse of authority, such as attempt, abuse of public officials’ position and so on.