‘직무수행 사실’과 ‘공무원 의제’에 따른 구성적 신분범의 처벌 문제

A De Facto Duty and Legal Fiction of Public Officials: Focusing on Punishment of “Sonderdelikt” (crime related to job position)

Korean Supreme Court’s case, 2015 Do 15798 sentenced on January 14, 2016 dismissed the defendants’ appeal. In the case the executives of the Housing Redevelopment and Maintenance Association substantially performed their duties even after they had lost their authorities. The court, however, stated that the fairness of performance, social trust should be protected as long as they were registered as executives in the association’s register at the time. It also pointed out that the executives’ duties were not transferable or sellable. In order to logically justify the judgment the concept of ‘public official’ should be expanded in terms of legal principle. Korean Constitutional Court, however, had considered this kind of concept expansion as an unconstitutional interpretation in its 2011 Heonba 117 case. It logically follows that the Supreme Court should not make judgement such as the above appeal case which can be an unconstitutional interpretation. It cannot be interpreted that City Maintenance Law’s article 84 which regulates ‘legal fiction of public officials in applying penal provisions’ includes ‘the substantial executives’ of the above appeal case. This is a ‘double legal fiction’ which exceeds interpretation of legal texts permitted by Criminal Law and also a wrong analogy prohibited by the law. There can be a practical need to punish a certain act. It is, however, impossible to punish the act without any relevant legal stipulation. This is the principle of legality. The solution to a defect in legislation is not an analogical interpretation, but, simply, legislation.