부진정부작위범의 보증인지위와 동가치성 - 대법원 2017. 12. 22. 선고 2017도13211 판결의 평석

The target judgment omits the judgment on the status of guarantee, which is the core of illegality and the premise of the judgment of the equivalent value of the statutory act, without any reasonable reason. This judgment also gives an important function to the concept of ‘behavioral equivalence’, but presents only the conclusion of the judgment while completely silent about the specific criteria and rationale for its judgment. This attitude fails to provide predictability to the citizens in terms of the components of the negligent misconduct, and as a result causes a serious impediment to the principle of the criminal justice system. If the court intends to maintain the attitude of using the test of ‘behavioral equivalence’, as a key factor in determining whether or not the criminal components are satisfied, it should be able to present the minimum outline for judging the criterion in order to avoid unnecessary misunderstanding that a commonly used phrase still appeared without any reflection. Since the target judgment cannot fulfill this function, it could be a better way to reach the same conclusion by negating the concept of the ‘force’ in the misdemeanor of obstruction of business regardless of the nature of the defendant’s act as an action or not.