유기죄의 주체인 법률상, 계약상 보호의무 있는 자의 범위

Article 271 Paragraph 1 of Korean Criminal Act punishes 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”. So-called Good Samaritan Law, which punishes abandonment by the one who does not have a duty to protect, was not introduced when the Criminal Act was enacted. With regard to the interpretation of ‘a person with legal duty to protect’ and ‘a person with contractual duty to protect’ as a subject of abandonment, there are issues whether Article 18 of Criminal Act, dealing with guarantor status in offences by ommission, or Article 734 of Korean Civil Act, dealing with management of affairs, can be the ground for the legal duty to protect, or whether contractual duty to protect comes from implicit contract. Article 18 of Criminal Act should not be deemed as the ground for legal duty in order to prevent excessive expansion of the subject of abandonment. Whether there exists contractual duty or not should depend on the contract interpretation. The regulations directly ruling the duty to protect person in need of help should be the basis of the legal duty to help, so rules of duty to report in special acts are not included in the basis, but rules of duty to take emergency measures can be included. ‘Contractual duty’ comes from not only when the main obligation of the contract is to protect person in need but also when there is duty of safety care as collateral obligation of the contract. According to the interpretation the Article 271 up to now, it is hard to say that subject of abandonment is overly limited, so taking overall system of related laws also into account, amending Criminal Act to introduce general duty to protect or to rescue person in need of help should be considered prudently.