인권옹호직무방해죄(형법 제139조)의 해석

Abstract

This work examines the legislation process, its purpose and legally protected interests of article 139 of the Korean Criminal Code. Furthermore,with regard to the rational interpretation of the above article, the author focused on the validity of the restrictive interpretation of the vindication of human rights, the validity of a prosecutor's execution of duties and instructions, the relationship between the crime on interference of executing official duties and dereliction of duties. In interpreting the above crime, the constituent conditions must be held subject to restrictive interpretation, with attention given to its legislation purpose. The subject of the above crime is not the prosecutor's execution of duties or instructions as a whole, related to the violation by the judicial police officer of the vindication of human rights. The subject should be strictly restricted only to such a prosecutor's execution of duties or instructions, the interference or non-observance of which would be so gravely illegal as to necessitate the criminal punishment of the judicial police officer. It is highly likely for an investigation of a crime to entail a direct violation of the rights enjoyed by the suspects or pose a specific risk to them. Therefore the vindication of human rights is critical for the execution of a prosecutor's duties. However this does not suggest that the above crime recognizes the superiority of the prosecutor to the judicial police officer,or that the status of a jurist is favored to that of a non-jurist. Since prosecutors are responsible for investigating crime, there is always the possibility of human rights violations on their part as well. The present crime is merely a means for enhancing the rule of law by the prosecutor in order to restrain the investigation carried out by judicial police officers.