In our society, the number of accusations related to abuse of authority has increased sharply since the Influence-Peddling Scandal(Meddling in State Affairs) 2017, and it is controversial whether any abuse of authority is guilty. According to the Prosecutor’s Almanac (the Supreme Prosecutors’ Office), of the total cases, 4,586 cases were filed with the prosecution for abuse of authority in 2016, but since 2017, the number has soared to 9,188 (2017), 13,738 (2018), 16,880 (2019), and 16,167 (2020). On the other hand, the prosecution rate for them is shown to be very low. The prosecution rate stood at 0.52% in 2016, 0.31% in 2017, 0.39% in 2018, 0.23%, and 0.14% in 2020. And, There are also a number of acquittal rulings on ‘abuse of authority’ against major high-ranking government officials indicted since 2018.

In this study, the occurrence and treatment of abuse of authority were identified, and a detailed review of the law theory on abuse of authority and its interpretation theory formed through the court’s judgment was conducted. And, based on this, legislative improvement measures on the law of abuse of authority were proposed to prevent excessive use of state punishment rights for public officials’ job activities while strictly punishing them for illegal activities. 

According to our court, the following three conditions are necessary for abuse of authority to be established: ⓐ abuse of authority (existence of general job authority + appearance that can be regarded as exercising job authority + actual and specific illegal acts (abuse), ⓑ compulsory work or obstruction of exercise of rights, and ⓒ causal relationship (between ⓐ and ⓑ). And our court are interpreting each of these requirements strictly. 

However, among the objective requirements for the establishment of abuse of authority, there is a strong criticism of the court’s limited interpretation of “abuse of authority” (distinction between abuse of authority and illegal activities using status). These critical views argue as follows: According to these precedents, there is a gap in punishment for “substantial illegality and acts that may be more likely to be criticized” which can undermine the development of a new official society that is fair and clean and fair in the exercise of state power, eventually adversely affecting public trust. These views also argue that an extended interpretation of the requirements for the establishment of abuse of authority should be made. On the other side, the principle of the rule of law is emphasized - as in precedents or more strictly than precedents - emphasizing the strict application and interpretation of the crime of abuse of authority.

The critical view of the abuse of authority case is basically based on the need for punishment for illegal exercise of authority by public officials that has been tolerated (or may be tolerated in the future) and concerns that can be abused as a means of political retaliation against political personnel or public officials after regime change. 

However, the “dual task” that Article 123 of the Criminal Code has to solve these problems – not interpretation – is bound to be solved through legislative efforts. Critics of the precedent seem to have no questions about this.

This study basically maintains a negative position on the theory of interpretation and legislative theory to expand the application of abuse of authority. As pointed out in the Constitutional Court’s Dissenting Opinion (Judge Kwon Sung), the constituent elements of abuse of authority are ambiguous, broad, and abstract concepts, and there is a risk of punishing high-ranking officials in the previous administration or symbolically punishing public officials in the event of a regime change. 

These concerns are bound to be sympathized to some extent when looking at the operation status of major countries (Japan, Germany, and the United States), where there are very few cases of application of regulations on abuse of authority. Nevertheless - apart from these concerns - it is necessary to respond to legislative efforts to specify the requirements for establishing abuse of authority or to prepare a measure to fill the gap in punishment for “substantial illegality and acts that may be more likely to be blamed(In particular, the act of a civil servant exploiting his position)”. Therefore, this study intends to propose a legislative proposal as follows. 

Criminal Law 

Article 123 (Abuse of Authority) (1) A public official who, by abusing his official authority, causes a person to perform the conduct which is not to be performed by the person, or obstructs the person from exercising a right which the person is entitled to exercise, shall be punished by imprisonment for not more than five years and suspension of qualifications for not more than ten years, or fine not exceeding ten million won.

(2) If a public official who, by using his official status through fraudulent means or by the threat of force, causes a person to perform the conduct which is not to be performed by the person, or obstructs the person from exercising a right which the person is entitled to exercise, the punishment specified in the preceding paragraph shall be imposed. (3) Attempts to commit crimes specified in the paragraph (1) shall be punished. 

In order to fill the gap in punishment for “s“substantial illegality and acts that may be more likely to be blamed”, it is necessary to limit the scope of the establishment of status use without general job authority by limiting the use of status to cases of “through fraudulent means or by the threat of force”. In addition, the expansion of the scope of punishment may be somewhat limited by acknowledging the establishment of an attempted criminal only for the illegal use of general job authority (abuse of authority). Through such legislation, it will be possible to impose strict punishment for public officials’ abuse of authority and illegal use of authority, while at the same time suppressing the excessive exercise of state punishment rights for public officials’ job activities. 

On the other hand, some administrative laws have the same (or similar) regulations of punishment against abuse of authority as ‘abuse of authority’ under the Criminal Law. Among these regulations, considering the relationship with the crime of abuse of authority under the Criminal Law, it is necessary to improve the relevant regulations if there is no need for separate regulations or if it is unreasonable. 

Since the contents of the constituent requirements stipulated in Article 102 of the National Finance Act are established only with the exercise of unfair influence, the timing of the establishment of the crime may be accelerated. However, in this case, there is no possibility of punishment, and there is no reason to separate the provisions because it is possible to be defined as a crime of abuse of authority (Article 123) under the Criminal Law, and the statutory sentence is the same as the crime of abuse (Article 123). It is also difficult to find an application case of this regulation. The provisions for the crime of abuse of authority under the “Old Fair Trade Act”(Article 69 of the former Act) have also been deleted (amended by the 2020 Act). 

In addition, the Resident Registration Act stipulates that a crime is established immediately if there is “abuse of authority”, without stipulating results such as “causes a person to perform the conduct which is not to be performed by the person, or obstructs the person from exercising a right which the person is entitled to exercise”(Article 38). However, considering the consistency with the Act on the Performance of Duties by Police Officers Article 12), it is necessary to stipulate the results (e.g., “If you have harmed others” etc.). This is because Article 38 of the Resident Registration Act stipulates that the punishment is “shall be punishable pursuant to Article 12 of the Act on the Performance of Duties by Police Officers.” 

In the case of the Recall of Elected Officials Act (Article 29), it is necessary to raise the statutory sentence in consideration of the consistency with the Public Official Election Act (Article 12) or the Referendum Act (Article 104). This is because all of them have something in common in that they are abuse of authority related to similar voting work.