무고죄에서 징계처분의 해석에 대한 비판적 고찰 = A Critical Review of the Interpretation of Disciplinary Actions in the Case of False Accusation

다국어 초록 (Multilingual Abstract)

Indiscriminate accusations and reports are rampant, and the resulting false accusations are also increasing. False accusation is a serious crime that involves using the judicial system to falsely accuse another person of criminal or disciplinary action. However, due to low awareness of the crime, there are many cases where it is used as a means to harass others.
The majority opinion and precedents hold that the primary legal interest in the crime of false accusation is the state's legal interest in exercising its judicial power and disciplinary power properly, while the individual's legal interest in not being unfairly punished or dispositioned is considered a secondary legal interest. Accordingly, the act of false accusation for the purpose of receiving disciplinary action is recognized as a disciplinary action under Article 156 of the Criminal Act only when the sanction is imposed due to a special power relationship or supervisory relationship under public law. Disciplinary action that has the nature of a judicial legal act is not considered a subject of false accusation.
Unlike criminal punishment, disciplinary action is characterized by a greater degree of infringement on the personal legal interests of the accused than on the national legal interests. The personal legal interests that are violated by disciplinary action cannot be overlooked. However, it is being applied with a focus on the interpretation that it is a crime that infringes on national interests by linking it with criminal punishment. As a result, those who are not in a special power relationship under public law are not protected by Article 156 of the Criminal Act even if they are subject to disciplinary action for making a false report.
Therefore, it is necessary to delete the ‘public office or public official’ specified as the subject of reporting in Article 156 of the Criminal Act on false accusation and to expand the scope of interpretation of disciplinary action. All public disciplinary actions based on the law should be regarded as disciplinary actions for false accusations, and it is necessary to protect those who have been unfairly subjected to disciplinary action or are at risk of such action, without distinction of special power relationships under public law or legal relationships under private law.