공공기관 채용비리 근절을 위한 업무방해죄 적용방법에 관한 연구 - 구직업무방해죄 도입을 중심으로 -

The fairness in hiring is a major social legal right (protection subject) due to the nature of Korea, which has to rely on the efficiency of human resources, and at the same time, an individual legal right of the citizens' legitimate freedom of the job applying. However, corruption in hiring, that is job offerer’s conduct which impedes the fairness in hiring occurs frequently not only in private companies but also in public institutions. Prosecuting for the crime of interference with business is currently the main means of protecting the fairness in hiring through the exercise of the national penal power in response to corruption in hiring. However, the current method of prosecuting for Interference with business has the limit of that criminal punishment is determined by the job interviewers' consent (Einverständnis) because interviewers, not job applicants, are set to be protected (interview business Interference crime). In addition, even though the crime of interference with business is an abstract endangering crime, in the case of corruption in hiring, the occurrence of the risk of business-interference is recognized only in a limited way, so protection for the fairness in hiring is insufficient. Therefore, not only the occupational independence of the job interviewer of public institutions, but also the job applying business of the job applicant, who is the substantial victim, should be protected from business-interference crime (the crime of interference with job applying business). Through this, it is necessary to allow job applicants decide whether to consent the corruption in hiring and to determine whether there is a risk of hiring fairness from the job applicant's point of view. In addition, for sufficient protection of hiring fairness, it is necessary to consider the prosecuting violations of the improper solicitation and graft act if there is a consent of job interviewer about hiring corruption cases in public institutions.