직권남용권리행사방해죄에서 ‘직권남용’요건의 판단

• 영문명: The Requirement of ‘By Abusing Own Authority’ in the Article 123, Korean Criminal Act: A Case Study on the Supreme Court 2022. 4. 28. Decision 2021Do11012)
• 발행기관: 한국형사판례연구회
• 저자명: 오병두
• 간행물 정보: 『형사판례연구』제31권, 289~322쪽, 전체 34쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2023.06.30

영문 초록

This article focuses on the Supreme Court 2022. 4. 28. Decision 2021Do11012. This Decision dealt with the Abuse of Authority (Article 123, Korean Criminal Act), which provides that “A public official who, by abusing his/her official authority, causes a person to perform the conduct which is not to be performed by the person, or obstructs the person from exercising a right which the person is entitled to exercise, shall be punished (...)”. The holding of the Court is that the acts of the defendant, who was then the Chief Criminal Chief Judge of an appeal court, engaged in the trials of the appeal courts by supervising or instructing the decisions(that is, by “abuse of judicial administrative authority”), were “unjust or inappropriate judicial interferences”, but his acts could not be established as ‘by abusing own authority’ in the crime of Abuse of Authority, since he does not have the “general authority of office” to engage in the trials. It is particularly noteworthy in the Decision that the Supreme Court has introduced a new approach in interpreting the requirement of “by abusing own authority”, by considering ‘authority’ and ‘abuse’ separately. The Supreme Court has been developing rulings in which both of these requirements were comprehensively examined. In the traditional approach, the requirement of “general authority of office” played a primary role in the exclusion of acts with no character of “authority of office”. However, the reasoning and conclusion set out in this Decision based on the new approach are not wholly satisfactory. Among other things, the Supreme Court identified the defendant’s acts as so-called “judicial interference” and interpreted them as part of Actus Reus. There seems to be confusion between acts and consequences in this reasoning, for his acts of engaging in the trials made it possible and finally resulted in the “judicial interference”. This Decision belongs to the judicial decisions dealing with the case of “abuse of judicial administrative authority” or “judicial scandal”. Given the significance of the issue and the value of public confidence in the judicial system, more detailed arguments and more acceptable conclusions would have been required.

목차

◇ 대상판결: 대법원 2022. 4. 28. 선고 2021도11012 판결

[평석]

Ⅰ. 들어가며

Ⅱ. 직권남용죄에서 ‘직권남용’의 해석론

Ⅲ. 대상판결의 ‘직권남용’ 판단에 대한 검토

Ⅳ. 맺으며

참고문헌

키워드

직권남용권리행사방해죄(형법 제123조) 직권 남용 직권남용 일반적 직무권한 Abuse of Authority (Article 123 Korean Criminal Act) Authority Abuse By Abusing Own Authority General Authority of Officials