적법한 선행행위로 인한 부작위범의 보증인지위

The establishment of offences of commission by omission under criminal law depends above all on the question on what basis a guarantor position is to be recognized, and among such bases the guarantor position derived from prior conduct, i.e. Ingerenz, is the most controversial topic. This article examines, with a focus on German doctrine and case law, the issue of whether a guarantor position based on Ingerenz may be derived from lawful prior conduct, and on that basis critically analyzes whether the recent Korean Supreme Court decision 2023Do6735 and the judgment of the Appellate Court were justified in deriving a guarantor position from lawful prior conduct. The German Federal Court of Justice (BGH) in the 1950s took the view that a duty to prevent the result could be recognized once prior conduct had created a danger, even if that prior conduct was lawful. Subsequently, however, its position evolved into the view that a guarantor position based on Ingerenz requires prior conduct that is objectively in breach of duty (pflichtwidrig) and the realization of a concrete risk arising therefrom. In Korea, academic opinion has been divided between the majority view, which recognizes only unlawful prior conduct as a basis for Ingerenz, and a minority view, which accepts a guarantor position in certain cases even on the basis of lawful prior conduct. Yet the Supreme Court had rarely dealt with this issue directly. Although Article 18 of the Korean Criminal Act designates as the subject of an omission offence a person “who has created a source of risk by his or her own conduct,” the legal character that such “own conduct” must have has remained a matter of interpretation. In a recent 2023 Supreme Court decision and the judgment of the Appellate Court, however, the courts dealt with a case in which the defendants moved a victim who had collapsed on the street to a motel and, after failing to take appropriate rescue measures, the victim died. Even while explicitly stating that the prior conduct could hardly be regarded as an unlawful act that created additional danger to the victim, the courts nevertheless recognized the commission of negligent homicide by omission on the basis that moving the victim to a motel room had blocked the possibility of rescue by third parties and that there existed a “duty to act according to general principles of reason.” This amounts to recognizing a broad guarantor position based on Ingerenz even in the context of lawful prior conduct, and is tantamount to accepting the expansive concept of Ingerenz of the 1950s that has already been abandoned by the prevailing German doctrine and case law. This article concludes that such an approach by the Korean courts expands criminal liability to encompass even permitted conduct, thereby unduly broadening result responsibility and running counter to the principle of culpability. In particular, since the Korean legal system does not have an offence of failure to render assistance corresponding to § 323c of the German Criminal Code (a general “Good Samaritan Law”), it is highly problematic, from the perspective of the democratic legitimacy of the state’s ius puniendi, to effectively create a general duty to rescue through an expansive interpretation of Ingerenz without prior legislative debate on such a duty. Furthermore, if a guarantor position is recognized on the basis of lawful prior conduct, this leads to the paradoxical result that a person who intervenes in a dangerous situation in good faith suffers greater criminal disadvantage than a passive bystander who does nothing at all, thereby risking the long-term chilling of “Good Samaritan” interventions. Accordingly, this article argues that, as a rule, a guarantor position should not be derived from lawful prior conduct; and that, in the case addressed by the Supreme Court, it would be more appropriate to ground criminal liability in the doctrine of voluntary assumption of protective duties rather than in Ingerenz based on lawful prior conduct.