형법상 작위와 부작위의 구별에 관한 고찰

This paper examines the distinction between acts and omissions in criminal law, synthesizing theoretical and case law discussions. Crimes are traditionally divided into commission offenses (Begehungsdelikte), in which the law prohibits certain conduct, and omission offenses (Unterlassungsdelikte), where the law requires certain conduct that was not performed. In particular, in the case of improper omission offenses (unechte Unterlassungsdelikte), additional requirements such as guarantor duties and the possibility of preventing the result must be fulfilled, which gives the distinction between acts and omissions significant importance for the scope of criminal liability. In relation to the moral and legal evaluation of acts and omissions, two opposing philosophical positions emerge: the Significance Thesis (Signifikanzthese) and the Equivalence Thesis (Äquivalenzthese). The former argues that the form of conduct itself carries essential moral significance, whereas the latter emphasizes substantive factors such as result, intent, foreseeability, and preventability, denying any intrinsic importance to the formal distinction. Legally, three major approaches have been presented regarding the distinction between acts and omissions: the ontological (existence-based) theory, the normative evaluation theory (normative Bewertungstheorie), and the subsidiary relationship theory (Subsidiaritätstheorie). Among these, the normative evaluation theory, which considers the social meaning of the conduct and the focal point of legal blameworthiness, is judged to provide the most reasonable standard of distinction. German case law adopts the view that the distinction between acts and omissions should be based on the social meaning of the conduct and the focal point of blameworthiness. The Korean Supreme Court, however, has offered varying explanations depending on the case. Yet, under the normative evaluation theory, it would be more appropriate to classify the Boramae Hospital case as an omission offense and the cigarette-butt fire case as a commission offense, contrary to the Court’s decisions. From the standpoint of legal stability and the principle of responsibility, it is necessary for the Court to apply consistent standards in distinguishing acts from omissions. Ultimately, the distinction should not be based on the physical form of conduct but rather on the social meaning (sozialer Handlungssinn) of the act as a whole and the focal point of blameworthiness (Schwerpunkt der Vorwerfbarkeit). This approach accords with the Equivalence Thesis and allows for rational legal judgments centered on results and responsibility as essential elements. Korean Criminal Act Article 18 does not provide for a qualitative distinction based on the form of commission or omission. Thus, Article 18 can be understood as grounded in the Equivalence Thesis, and applying the normative evaluation theory to the distinction between acts and omissions not only reflects this thesis but also aligns with the legislative intent of Article 18.