재량권 일탈·남용에 대한형사법원의 심리판단 가능성 -대법원 2025. 4. 24. 선고 2024도14930 판결을 중심으로-

The discussion of the matter for a prior decision related to whether the criminal court can evaluate the illegality of the disposition in cases where the violation of the obligations imposed by the disposition is a body of the crime under the criminal law is closely related to authentication of the disposition. This is because, as long as the disposition is not invalid, the criminal court must respect the effect of the disposition according to its authentication. Accordingly, there is a controversy whether the criminal court can independently evaluate the illegality of the disposition. The majority of theories and precedents consider that it is not contrary to authentication that the criminal court determines the illegality rather than denying the effect of the disposition, because authentication is limited to the inability of an unauthorized institution to deny its effect.. There is no great disagreement on the possibility of the criminal court’s sole examination of illegality, but there is a conflict of opinion on the possibility of independent examination of all reasons for illegality. Numerous opinions hold that the illegality examination should be conducted only for specific grounds for illegality, and a majority of theories maintain that the criminal court cannot examine it alone because it is appropriate to examine it in an administrative court, considering the purpose of having an administrative court, which is a specialized court, as a part that requires a high degree of expertise in judgment, and that even if the disposition is illegal due to the deviation and abuse of discretionary power, there are still protective legal interests to be achieved through the disposition, so it is inappropriate to examine it in terms of achieving administrative purposes, and that judgment on discretion violates the principle of separation of powers because it is the intervention of jurisdiction in administrative power. However, it is not readily acceptable that the criminal court cannot examine the illegality arising from the deviation or abuse of discretionary power . It is not persuasive to agree with the argument that the deviation or abuse of discretionary power requires professional judgment by the administrative court in light of the reality of court operations in Korea, where organization or personnel composition of the administrative court and the general court is not separated, and the movement of judges between each court is very frequent. Also, considering the attitude of the precedent that it is difficult to impose criminal punishment for violating the obligations of the disposition if the disposition becomes illegal, it is necessary to examine all grounds for illegality to ensure the basic ideology of criminal law, such as the principle of presumption of innocence, in that the wider the scope of illegality examination, the less punishment. The fact that no basis for differentiating the scope of examination according to reasons for illegality can be found even when looking at the logic of the current administrative cases and controversies or the criminal court’s precedents related to matter for aprior decisions. The Supreme Court’s April 24, 2025 judgement is meaningful in that it confirmed the possibility of independent examination by the criminal court for the deviation and abuse of discretionary power. In conclusion, although the illegality of the deviation and abuse of discretionary power was denied, it can be assessed that the criminal court recognized the possibility of examining the deviation and abuse of discretionary power in that it actively judged whether the exercise of discretionary power violated the principle of proportionality. It is meaningful that the ruling can promote broader rights remedies through extensive examination of the disposition, and it can be expected that a broad examination of the illegality of the disposition can be made in criminal trials by reflecting the judgment.