유기죄의 보호의무

Abstract

In order to establish a crime of abandonment, an actor must have a so-called duty to protect, namely a legal or contractual duty. There are two different views on how to understand this duty to protect, especially the grounds of the duty. The one is a view interpreting that duty to protect of the abandonment can be widely recognized by management of affairs, custom or naturalis ratio. This view says that the “legal or contractual duty to protect” of the Article 271 (1) is nothing more than an example. The other view is opposed to this opinion pointing out that Article 271 (1) of the criminal act clearly limits the obligation to legal or contractual duty to protect. However, such differences can be easily overcome by understanding that the Article 18 is also one of the ground for legal duty to protect provided by the Article 271 (1). This interpretation could not be made because there was some misunderstanding. In particular, misunderstanding about the duty of guarantor or status of guarantor for the omission crime seems to have caused confusion in interpreting the duty to protect of abandonment. When the so-called theory of guarantor, it was thought that duty of guarantor was a legal duty and the legal duty naturally came only from the statutes or contracts. That is why it was thought that the duty of guarantor of the omission was derived only from the legal form of legislation or contracts. This is a view called “Formal theory”. This formal theory soon struck a snag. This is because formal theory could not produce a reasonable conclusion. So there has also been an attempt to give up tinkering with formal theory and explain the basis for the occurrence of the duty of guarantor from a completely different perspective, which is what we call functional theory. There can be no further disputes in that the basis of the duty of guarantor should be substantially understood rather than formally. This difference in opinion now stems from a misunderstanding of the status of guarantor of omission, which can be easily resolved by understanding the nature of the status of guarantor and the basis. The problem of grounds of the duty to protect for the criminal abandonment could reasonably get solved by understanding that the Article 18 is also one of the ground for legal duty to protect provided by the Article 271 (1), and by understanding from the standpoint of the so-called functional theory.