다수인의 과실 부작위가 경합한 경우의 형사법적 죄책 - 대법원 2023.3.9. 선고 2022도16120 판결의 평석을 겸하여 -

Abstract

This article dealt with issues surrounding criminal liability in cases where the so-called negligent omissions of multiple people collide. It is also a review of the ruling of Korean Supreme Court Decision 2022 Do 16120 sentenced on March 23st 2023. In this ruling, the korean Supreme Court clarifies its position with respect to negligence, omission, co-principal, and causality. There are already voices criticizing the position of precedents on the distinction between an act and an omission, the basis for the genesis of a guarantor status, and the requirements for establishing a negligent omission of duty of action. Against this background, this article points out problems with the legal principles or doctrines of the trial court and the Supreme Court and also suggests challenges in interpretation theory that could be topics that requires more detailed discussion. Assuming that the appellate trial and the Supreme Court's findings of fact and evidentiary judgment are accurate, each of the defendants in this case is a sole offender and has committed negligence by omission, that is, the crime of misfire. Nevertheless, the legal principles and arguments, not only of the lower courts but also of the Supreme Court, that appear in the ruling are quite confusing and ambiguous. In particular, the Supreme Court's rulings, which present legal principles with the power of authoritative interpretation, must be improved to be clear and easy to understand. In interpretive theory of criminal law, there is a need for more precise and logical discussions regarding the distinction between acts and omissions and whether causality is necessary between preceding acts and their results with respect to the position of guarantor and his duty for the prevention of harm.