With the "Gookjeong-Nongdan(manipulation of state affairs)" Scandal, which also called as "Choi Soon-sil(Park Geun-hye) Gate", Public officials’ duty crimes including abuse of authority have become a national concern. Imposer Solicitation and Graft Act, the law to supplement the legislation of Bribery, was enacted in September 2016 but it failed to prevent such a state affairs. The current administration, however, stresses the so-called "Eradicating a Deep-Rooted Evil" and "Continued Public Office Reform", and those requests raise the need to reconstruct and tighten sanctions on Public officials' duty crimes, especially those for abuse of authority.
Questions could be arose whether applying the general duty crime rule to "Power based duty crime" is an effective and just sanction given that Power based duty crime is committed by political elites and high-ranking government officials and causes serious damage to the public sector. On the other hand, the tension between the "politics and criminal law" can be problematic when power based duty crimes are punished more severely with criminal law than general duty crimes.
This study first aimed to establish concept of "Power based duty crime", because it is not a legal concept. Under the existing concept of "Power based corruption," Power based duty crime can be defined as "a duty crime in the nature of political corruption committed by the Government and Political power elite." Even looking at the main charges of a total of 22 defendants arrested for Gookjeong-Nongdan, we can see that the influence-peddling was committed in the form of typical power based corruption. Noting the main charges among the defendants, especially those of high-ranking Government officials, there is abuse of power, or abuse of authority, at its core. Thus, we researched the theory of interpretation and legislation for the inclusion of power based duty crime.
Important issue to be dealt with here is excessive criminalization in the boundaries of politics and criminal law. The president and other Government officials involved in high-level policy-making work and they work in realms of both politics and administration. The process of justifying the third stage was reviewed by referring to the recent German discussion concerning the reasons for criminal punishment and exclusion of high-ranking officials in the area of policy decision making. The starting point for the first step shall be the provision for special authorities that determine the extent to which political conduct is democratically justified. Then, in the second phase, there should be provisions on the so-called "executionary privilege," which exempts people from punishment for acts beyond their authority in the first stage, mindful of the risk of mistakes associated with political affairs. Finally, it is not until the third stage that the perspective of the typical criminal law is activated, which appears in the form of a reason for non-compliance or liability that excludes or justifies the act itself regardless of the particular role of the public officials. Between these three steps, a hierarchy exists and only when it is deemed that the first step has exceeded the limit of the applicable special powers shall it be transferred to consideration of the immunity associated with the second step’s. Lastly, the application of the penalty regulation under the third-phase general criminal law is considered only if the special circumstances related to political activities do not constitute a reason for the exemption of punishment.
In the case of abuse of authority under criminal law in connection with an influence-peddling case, the law should be limited in accordance with the need for protection of legal rights, which has been strengthened in proportion to the supplementary function and ultimate measure of criminal law. Regarding the interpretation and application of the crime of abuse of authority, the problem is that both the Supreme Court and the theory (Majority opinions) are interpreted as "general authority of duty," which is subject to abuse, and that there is no evidence of its scope. The Supreme Court, even if there is no legal basis in determining "general authority", comprehensively and practically observe the law and system to determine whether a public officials are authorized to do a job. And if, even if abused, it is deemed that the abused authority is sufficient to cause the other party to do virtually unenforceable work or to interfere with its rights, the abused authority is included in the "general authority."
In this regard, there have been two recent significant interpretative attempts. They are "Purpose-Means Unionism" and "Authority-Abuse Reconstruction Theory."
The former interpretation is an interrelationship attempt to see with purpose and means. In this view, if the authority is exercised for a real unjust purpose, although uses legitimate means by mutual understanding, it is an abuse of one's authority. However, this theory has a limit that it is not easy to prove the existence of an illegal purpose to stop an investigation and therefore can be used only on certain exceptional issues, in the criminal procedure.
The latter raises the possibility of precisely capturing the abuse of authority by public officials. It sets out a relatively simple criterion as the resultant's logic that obstruction of rights should be linked to the occurrence of results. Through this, the concept of "authority-abuse" is reconstructed to apply the concept of abstract and concrete authority and the concept of limited and comprehensive abuse. In particular, the concept of "quasi arrogation in phase 2" allows the government to be recognized as it if it meets certain prerequisites, even if the act is outside the scope of duty's abstract authority.
In comparison, § 240(4)2 of the current German Criminal Code divide the types of public officials' abuse of authority into two, abuse of authority and abuse of status. This distinction is also disputed in relation to article 302 of the Austrian Criminal Code. This is a controversy over whether the abuse of authority, which is a corpus delicti, is only in the content of his or her control or includes the case with assuming the duty title.
In the case of the United States, it was important that even the large-scale gate case with President Nixon and President Clinton, was not an exception to the plea bargain in understanding criminal justice. Suspects and key witnesses were handled with not criminal method, but outcome of political compromise. These U.S. cases show the possibility of resolving the "Gookjeong-Nongdan" Scandal in Korea, through political compromise in a democratic society, not in the Court.
In China, the legislative aspect shows a strengthening of punishment related to duty crimes. Even in the global trend of abolition and reduction of the Death penalty, there are 46 possible criminal charges in China that include crimes of Greed and Bribery. Here, the principle of zero-tolerance toward duty crimes of lawmakers' is strongly demonstrated.
Power based duty crime is a serious crime. Strict investigations, fair trials and law enforcement are top priority on abuse of authority, especially those of the highest power. And through this process, the actual truth must be discovered and the corresponding criminal responsibility should be confirmed. Rather than comprehensively defining abuse of authority, it is necessary to specify various types of conduct. Above all, the Government should specifically ban various types of conduct, such as actions beyond the authority of duty, abuse of the position of using the command system and hierarchical order, violation of the procedures of duty events and irrationality of discretionary decisions, and in the case of Ommission, the legal sentence should also be considered in consideration of the systematic correlation with dereliction of duty.