부진정 부작위범에서 동가치성의 의미, 내용에 관한 독일, 일본의 논의와 시사점

In this paper, I have reviewed the views of Germany and Japan, which require equivalency with the commission of an act in addition to guarantor status and violation of the obligation to act as elements for establishing a crime of omission, and analised various views on the meaning and content of the judgment of equivalency in omission crime. Although I reviewed various views on the essentials, functions, and contents of equivalency element, I was not convinced about the necessity of establishing equivalency element as a condition for establishing a omission offense which is result from violation of duty of conduct. Therefore, the view that the violation of the guarantor's duty of action is sufficient as a condition for establishing a crime of omission crime. Even so, it cannot be said that there are no implications at all that can be obtained from the theory of necessity of equivalence requirement. In other words, among today's precedents regarding crimes of omission, including the Sewol Ferry Incident case, the view of equivalence as requirement for crime of omission is partially underlying, either explicitly or implicitly, and is considered an independent requirement for establishing a crime of omission. Then, the thesis of the equivalency of crime of omissions is not simply about the presence or absence of equivalency, but its meaning and contents are thought to be more important. In addition, denying the equivalency with a crime of commission does not immediately deny the establishment of a crime of omission, but the establishment of an aiding or accomplice to a crime of omission must also be reviewed the individualization function of equivalence element and a more detailed discussion on the distinction between a principal and an accomplice in a crime of omission is necessary. It will be an issue as important as the equality with the criminal.