직무유기죄의 형법상 해석 및 형사소송법상 적용 범위에 관한 연구

초록

Public officials are bound by duties of fidelity and compliance with laws, and violations may lead to disciplinary sanctions or compensatory liability. In addition, Article 122 of the Criminal Act punishes “dereliction of duty.” Yet, since the elements—“refusal to perform official duties” and “abandonment of duty”—are abstract and broadly defined, there is a risk of over-expansion of criminal liability. The Supreme Court has interpreted the elements of the offense narrowly, and while some propose construing it as a commission by omission, it should be noted that (i) negligence by public officials can already be sanctioned administratively, (ii) only a few socialist countries criminalize such conduct, and (iii) the protected interest should be seen not only as “state functions” but also the prevention of risks to citizens’ fundamental rights. Under the recent Korean justice system, dereliction of duty may fall within the jurisdiction of the Prosecutors’ Office, the Serious Crimes Investigation Agency, and the Corruption Investigation Office. Because these agencies may expand their scope to related offenses by treating it as a principal crime, the risk of overlapping investigations arises. The criterion of “direct relevance” must therefore be interpreted restrictively, by analogy to the standard of relevance in search and seizure, and only for offenses discovered after the investigation into the principal crime has begun.

키워드