직권남용죄의 남용가능성과 그 개정방향

In the wake of state affairs corruption, judicial corruption, and so-called “clearing of past wrongs,” the crime of abuse of official authority has drawn renewed attention. At the same time, both expectations and concerns have emerged. On one side, there is a demand for broader application of this crime in order to eradicate long-standing practices of abuse of power in public office. On the other side, there is concern that such expansion may discourage public officials from actively performing their duties, leading instead to calls for restrictive application. In the National Assembly, criminal law amendment bills reflecting the expansionist view are under deliberation. By contrast, the government has announced plans to revise the law so that the crime is not used as a tool of political retaliation. These expectations and concerns sharply confront each other across all major issues surrounding the crime of abuse of authority. The position of the Supreme Court is not free from ambiguity. While it maintains the principle that “without authority, there can be no abuse,” it also argues, in a circular manner, that authority may include power that is abused and results in interference with the exercise of rights. As a result, the scope of “official authority” becomes highly fluid. Relying on this reasoning, proponents of expansive application argue that acts exceeding authority or mere use of one’s position can also constitute abuse of authority, either through interpretation or legislation. However, a person who cooperates with a public official who exercises de facto influence by using his or her position should not be regarded as a victim of abuse of authority. Rather, such a person should be seen as a perpetrator with an accomplice-like character. Through such cooperation, that person seeks personal benefit, while the actual victim is someone else. Therefore, the use of position by a public official cannot be regarded as abuse of authority. From a legislative perspective as well, there is no need to add “use of position” to the offense. Moreover, the concept of “abuse” of authority should not be understood as mere deviation or misuse of discretionary power. Instead, it should refer to cases combined with criminal means, such as violence, threats, deception, or coercive force. These criminal means provide the very basis for intervention by criminal law. In order to allow such an interpretation, the perpetrator of abuse of authority should be limited to public officials who perform duties accompanied by coercive power. This limitation should also be considered for explicit inclusion in legislation. In addition, the victims of abuse of authority should be private individuals. Public officials, in principle, should not be regarded as victims. Public officials are holders of authority, not holders of rights. If a subordinate abuses authority by following an illegal or improper order from a superior, that subordinate is not a victim but rather an accomplice. To clarify this point, it should be considered to amend the provision by replacing the current term “person” with “private individual.” Finally, the phrase “an act without duty” may be interpreted as encompassing all acts not legally imposed as duties. This interpretation risks transforming the offense from a result-based crime into a pure endangerment offense. Given this excessive flexibility, it should be considered to delete the concept of “duty” altogether. Through such restrictive interpretation and limiting legislation, it will be possible to promote more active and proactive performance of duties by public officials.