부진정부작위범의 미수 혹은 그 실행의 착수시기 -대법원 2021. 5. 27. 선고 2020도15529 판결-

Abstract

This commentary discusses the Supreme Court Decision 2020Do15529, Decided May 27, 2021. In this case, the prosecutor filed an indictment for an attempted occupational breach of duty (Article 365, 355(2), 18 of the Criminal Act), claiming that the accused, who was the representative director of a company in charge of an urban development project in behalf of the implementation association(implementer) resigned and did not proceed to change the replotting plan in order to re-assess the increase in the value of the plotted lands according to the change in the project implementation plan, and thereby causing some people benefited from this increased value and the implementation association to suffer a corresponding loss at the same time. As conclusion, the Supreme Court held that the omission of the accused did not constitute an attempted occupational breach of trust on the grounds that it was not possible for the accused to change the replotting plan at the time of his resignation and that not only the executives and employees remaining in the company but also the executives of the implementation association were well aware of the situation, so that they could easily proceed to re-assess the increase in the value of the plotted landsThe Supreme Court, in its ruling, interpreted the ‘danger of occurrence’ in the Article 18, and presented a criterion for attempted criminal omission in a situation in which the ‘danger of occurrence’ of the crime exists, holding that the omission in “an urgent situation in which a disposition of replotting will be made and the rights of the members of the implementation association will be confirmed very soon” could constitute an criminal attempt of occupational breach of duty. And the Supreme Court also distinguished ‘danger of occurrence’ from the requirement of ‘danger of property loss’, which elementt could fulfill the requirement of the completion of this crime. The author appraises the Supreme Court Decision positively, due to the point that the decision materializes the ‘danger of occurrence’ in the Article 18 as a criterion for the commencement of criminal attempt by omission and differentiates this criterion from the requirement of ‘danger of property loss’.