일본의 공무원직권남용죄에 관한 검토

Abstract

The applicability and the crime of abuse of authority to high-ranking government officers and judges, and the interpretation of the relevant Criminal Code provisions have become subject to a lively debate recently. Looking into the Japanese discussions on the issue may shed useful insights into the similarities in the provisions and interpretative methods. The crime of abuse of authority is stipulated in Article 193, under the Chapter XXV, Title II, Crimes of Corruption. The substance of the two countries' laws are fairly similar, with several differences in expressions and statutory penalties, including that the Japanese law: 1) does not prescribe dereliction of duty; 2) does not prescribe aggravated punishment based on the status of being a government official; 3) does not punish attempted unlawful arrest and unlawful confinement; and 4) prescribes consequently aggravated crime for bodily injury and death inflicted by specialized public employees. While the prevailing view acknowledges both national legal interests and personal legal interests as the benefit and protection of the law provided by the abuse of authority clauses, there are split views over which of the two should receive more attention. As to the question of whether the nature of the offense is identical to that of the crime of extortion, the view of the Supreme Court is understood to be not requiring suppression of will. The notion of 'authority and 'abuse' must be clarified in order to establish abuse of authority by a government officer, as the offense requires 'abuse of authority. 'Authority,' inter alia, for the purpose of the offense of abuse of authority by government officers, should fall within the scope of 'general official authority.' There is a dispute over whether it is also required that the abused authority a 'special power' within the 'general official authority, in order for the abuse of authority to be established. “Abuse” of authority means that a public officer commits a specific illegal or unjust act by entrusting the exercise of authority with matters belonging to his/her general authority. In addition, in order for a crime to be established, the results of forcing someone to do something that is not mandatory or obstructing the exercise of rights must occur.