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법학연구 第34卷 第1號.jpg
KCI등재 학술저널

공무원으로의 벌칙의제 규정이 문서의 ‘공문서성’을 결정할 수 있는지 여부

Recently, the Supreme Court ruled that a document issued by the governor of the Financial Supervisory Service(FSS) is considered a public document according to Articles 29 and 69(1) of the Act on the Establishment of the Financial Services Commission. Article 69 of this Act states that individuals who are not public officials are treated as public officials when it comes to applying penalties under the Criminal Code or other laws. The governor of the FSS is classified as a public official by presidential decree, thus falling under this Legal Fiction of Public Officials. Based on this regulatory framework, the Supreme Court concluded that a document issued by the governor of the FSS should be considered an official document. This interpretation is justified as it is appropriate to interpret the governor of the FSS and other employees as public officials for the purpose of imposing equal responsibilities and providing them with the same protection as public officials. However, this interpretation does not justify treating crimes against non-government employees as crimes against government employees, as it broadens the scope of the current penalty system and serves as a compensatory mechanism for excessive punishment. According to this interpretation, there are always errors of the the actor. In this case, it would be appropriate to penalize the actor for falsifying a document under Article 15(1) of the Criminal Code. Despite the lack of merit in this interpretation, it is difficult to agree that interpreting, when they provide penalties for non-public officials based on the 'type of criminal law fiction,' exceeds the limits of interpretation. The role of the judiciary is to declare what the law is, and if bad legislation exists, it is the responsibility of the legislature to correct it through new legislation. Expanding the scope of punishment for bad legislation through an interpretation that goes beyond the literal meaning of the text.

Ⅰ. 문제의 제기

Ⅱ. 공무원으로의 벌칙의제 규정과 문서의 공문서성 판단

Ⅲ. 결론

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