독일 형법 제257조 범죄비호죄에 대한 연구 - 보호법익 및 구성요건을 중심으로 -

Although Article 257 of the German Criminal Code governs material protection and Article 258 of the German Criminal Code governs human protection, which are sometimes described as the equivalent crimes of destruction of evidence and extradition in Korean criminal law, respectively, there are many differences between the criminal protection of the German Criminal Code and the destruction of evidence in Korean criminal law. There are various arguments for the protective legal interest of criminal protection, including the view that it is a legal interest that has been violated by a prior crime, the view that it is the law enforcement mission of the state to restore the lawful state of affairs, and the view that it is a deterrent to future crimes. In contrast, the general consensus is that the crime of suppression of evidence in Korean criminal law protects the judicial function of the state. The requirements of the crime of criminal protecting are that there must be an objective existence of another person's prior offense and that the prior offender must have obtained a benefit from the prior offense. In addition, the criminal protector must have provided objectively reasonable assistance to the predicate offender in securing the benefit of the predicate offense. The next subjective requirement is the existence of a purpose to secure the benefit of the crime for the predicate offender as an extra-subjective element. In contrast, the object of the offense of tampering with evidence in our criminal law is evidence that is relevant to establish the existence or non-existence of a penal or disciplinary right of the state; it does not require that an offense objectively subject to a penal or disciplinary right has existed and that the alleged offender has obtained any benefit in connection with the criminal or disciplinary case. Both the criminal protecting offense in the German Criminal Code and the destruction of evidence offense in our criminal code have in common the fact that they both protect criminal in nature. However, the offense of criminal protection in German criminal law is an offense that consists in providing assistance to a predicate offender who has actually obtained a benefit from an objectively existing predicate offense to secure the benefit of the predicate offense against the victim of the predicate offense or against deprivation by the state. This is differentiated from the crime of destruction of evidence in our criminal law, which is aimed at protecting the judicial function of the state and impairing the probative power of evidence.