부작위범의 적용범위 제한에 관한 소고

There is no special regulation about requirements of the preceding act, but two elements are discussed. Those are to cause a danger of legal interest violation as a external element and to be illegal itself as an inherent requirement. After all, when a preceding act is not illegal, a criminal responsibility shall not be regarded for the criminal result. There are some cases which admit untrue omissions by intent on the ground of a preceding act instead of accepting a intentional crime by an active behavior. We must be careful in these cases not to easily admit untrue omission. It should be avoided to use other reasons as grounds of guarantor except statutes or contracts. Because the interpretation of these ways can expand the status of guarantor out of all limits. If we interpret the preceding act in this context, guarantor can be admitted only if the preceding act violate certain statutes or contracts. The way that criminal law provides the crime of abandonment article 271 can be a reference for interpreting guarantor of untrue omission. In the article 271, abandonment, the duty to act is provided in clear term. The article 271 is written as “A person who abandons another person in need of help by reason of old age, infancy, illness or other circumstances, whom one has a legal or contractual duty to protect.” That is, the grounds of duty to act of abandonment as the true omission are provided in clear term and duty to act in other grounds is not accepted by majority. So statutes and contracts can be the main outbreak grounds for the guarantor of untrue omission. In the case of prior act, only illegal or contract violating prior act could be grounds of guarantor of untrue omission.