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A Study for the Restrictive Application of Omission

The nature of offences by so-called “untrue omission” is to cause a result, although to act is required and possible in a specific situation. The article 18 of the Korean criminal law just provides, “When a person who, having a duty to prevent the occurrence of danger, or having caused the occurrence of danger, does not prevent the occurrence of danger, that person shall be punished in accordance with the results of such danger.” The rests of things about duty of act are left to theoretical interpretation. The arguments are not so severe that the status of guarantor could be accepted on the grounds of statutes or contracts. But it is needed to discuss about a preceding act or naturalis ratio. Not to expand the scope of criminal punishment by untrue omission, we should avoid admitting the status of guarantor on the grounds of informal things except statutes or contracts. In order to limit as much as a crime of omission, that would be currently the best way to interpret the article 18 ‘a person who has to prevent the occurrence of results.’ What was discussed is that there is no need to provide it as a separate provision, because the preceding act can be included as a ground of status of guarantor. So some people suggest that the phrase of the preceding act in the article 18 should be deleted in the criminal law revision. There is no special regulation about requirements of the preceding act, but two elements are discussed. Those are to cause a danger of legal interest violation as a external element and to be illegal itself as an inherent requirement. After all, when a preceding act is not illegal, a criminal responsibility shall not be regarded for the criminal result. There are some cases which admit untrue omissions by intent on the ground of a preceding act instead of accepting a intentional crime by an active behavior. We must be careful in these cases not to easily admit untrue omission. It should be avoided to use other reasons as grounds of guarantor except statutes or contracts. Because the interpretation of these ways can expand the status of guarantor out of all limits. If we interpret the preceding act in this context, guarantor can be admitted only if the preceding act violate certain statutes or contracts. The way that criminal law provides the crime of abandonment article 271 can be a reference for interpreting guarantor of untrue omission. In the article 271, abandonment, the duty to act is provided in clear term. The article 271 is written as “A person who abandons another person in need of help by reason of old age, infancy, illness or other circumstances, whom one has a legal or contractual duty to protect.” That is, the grounds of duty to act of abandonment as the true omission are provided in clear term and duty to act in other grounds is not accepted by majority. So statutes and contracts can be the main outbreak grounds for the guarantor of untrue omission. In the case of prior act, only illegal or contract violating prior act could be grounds of guarantor of untrue omission