범죄신고의무위반죄에 대한 고찰

With the division of labor and interdependency of social activities, the importance of administrative laws ensuring each profession behave ethically for common social and economic welfare has intensified. However, legal instrumentalism has encouraged the administrative laws to utilize criminal punishment as an instrument to increase the compliance rate while neglecting the traditional culpability-based limits in criminal punishment. Such trend has caused a drawback of over-criminalization eroding the principle of fairness and proportionality in criminal law. This paper focuses on the administrative laws criminalizing the non-compliance with the duty to report specific crimes imposed on private actors in certain professions and industries. The laws now compel a wider range of private actors to behave in a more proactive manner. Increasingly, administrative laws highly regulate the private actors not only to report crimes to government authorities but, sometimes, even to monitor and deter crimes. Not only a third party who witnessed the crime, but an individual who could be punished by the crime reported, and a victim harmed by the crime, could be under the obligation to report the crime. However, in legal academia, normative theory for the duties to report crimes has not kept pace with the laws. It is time to develop the normative theory to analyze whether the laws criminalizing ommission (non-reporting) could be justified and, if not, what the law ought to be to be justified. For this purpose, this paper studies related legal-philosophical and social science researches and provides an analytical standard, framework and classification. By doing so, this paper aims to rethink the laws crimininalizing non-reporting of crime which are scattered throughout our legal system and to recover the principle of fairness and proportionality.