흠 있는 처분과 처분위반죄의 법적 문제

Abstract

In principle, the criminal law punishes the occurrence of specific risks, but in the administrative law, the occurrence of abstract risks is also subject to punishment. In the case of violations of administrative action prescribed by the individual “Administrative Order Laws” for the purpose of preventing risks to various administrative order, a breach of administrative action does not constitute a component of an offense. In the sense that it required for the crime of subcontracting is for the purpose of removing a foreseeable abstract risk or a risk that has occurred, protective interests - which constitute a component of the offense of violating it - should be viewed as protection of people, objects, or the environment from abstract risks prohibited by the applicable law. In this regard, the question of whether the constituent elements of the offense of it is established does not depend on the “Effect of the administrative action regardless of defect”, but with the aspect of illegal flaws present in the administrative action. Therefore, in the case where the illegality of it becomes a pre-emptive issue in the criminal court, the court must admit or deny the establishment of the constituent elements of the crime, after examining whether the flaw is related to the abstract danger or the specific danger to be controlled. In other words, whether or not the constituent elements of the offense are established should be the outcome of the judgment as to whether the flaws in the administrative action in question are related to the competence provision(capacity to prevent danger), the provision of cancellation of that capacity(compulsory provision) or the provision for risk control. However, if the flaw is only procedural, it should not be considered that it does not affect the establishment of the offense of administrative action.