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@article{ART003380398},
author={Hong, Tae-Seok and 권양섭},
title={The Legal Nature and Interpretation of the Crime of Abandonment of a Corpse with a Focus on Cases Involving a Prior Act Followed by an Omission — Implications Derived from a Review of Japanese Case Law -},
journal={Legal Theory & Practice Review},
issn={2288-1840},
year={2026},
volume={14},
number={3},
pages={523-555}

TY - JOUR
AU - Hong, Tae-Seok
AU - 권양섭
TI - The Legal Nature and Interpretation of the Crime of Abandonment of a Corpse with a Focus on Cases Involving a Prior Act Followed by an Omission — Implications Derived from a Review of Japanese Case Law -
JO - Legal Theory & Practice Review
PY - 2026
VL - 14
IS - 3
PB - The Korea Society for Legal Theory and Practice Inc.
SP - 523
EP - 555
SN - 2288-1840
AB - This study examines the legal nature of the crime of abandonment of a corpse by omission under Article 161(1) of the Korean Criminal Act, with a focus on criminal law issues arising from cases involving a combination of a preceding affirmative act of concealment or abandonment followed by a subsequent passive act of leaving the corpse unattended (hereinafter referred to as the ‘combination of a prior act and a subsequent omission’). To this end, this study comparatively reviews major Japanese judicial precedents and academic theories, thereby drawing out concrete legal implications and proposing a rational interpretive framework for Korean criminal justice practice. The essence of the crime of abandonment of a corpse lies not merely in protecting physical remains, but in safeguarding society’s general religious and reverent sentiments, as well as commemorative feelings toward the deceased. The prevailing scholarly view and judicial precedents recognize that where a person who has a legal, contractual, or customary duty to bury or care for a corpse (a person responsible for burial) fails to fulfill that duty and leaves the corpse unattended, the crime of abandonment of a corpse is established as a commission by omission. However, continuous academic and practical debates have persisted regarding the relationship between the prior act and the subsequent omission, as well as the independent establishment of a crime by omission, in “combination of a prior act and subsequent omission” scenarios, such as concealing a corpse following infanticide or leaving a corpse unattended for an extended period after a violent crime. Traditional, more restrictive views held that once the crime of abandonment of a corpse is established by a prior affirmative act, a subsequent omission does not constitute a separate offense because it lacks any new infringement of legal interests. However, this stance has a critical limitation: it fails to fully evaluate the unlawfulness and punishability when a person responsible for burial leaves a corpse unattended for a long time to evade criminal responsibility. In contrast, recent Japanese case law has recognized the establishment of the crime of abandonment of a corpse in cases where, following an affirmative act, the corpse was left unattended within the offender’s sphere of control; it held that despite the existence of the prior act, the duty to bury does not disappear, and the continuous act of leaving the corpse unattended constitutes an independent omission element. Nevertheless, the requirement of a ‘sphere of control’ suggested by some precedents risks narrowing the scope of physical control excessively, potentially creating gaps in criminal liability. Accordingly, this study examines how to overcome the limitations of the sphere-of-control logic by determining the establishment of omission liability primarily based on the ‘objective possibility of fulfilling the burial duty’ rather than physical control over the location. Furthermore, this study proposes a rational interpretive framework to achieve fair criminal responsibility: by treating the relationship between the prior act and subsequent omission as a comprehensive single offense (po-gwal iljoe), it prevents double punishment, enables the recalculation of the statute of limitations based on the subsequent omission status even when the statute for the prior act has expired and expands the scope of accomplice liability.
KW - Abandonment of a corpse;Omission;Commission by omission;Guarantor's duty;Combination of a prior act and a subsequent omission;Japanese case law;Continuing offense;Comprehensive single offense.
DO -
UR -
ER -

Hong, Tae-Seok and 권양섭. (2026). The Legal Nature and Interpretation of the Crime of Abandonment of a Corpse with a Focus on Cases Involving a Prior Act Followed by an Omission — Implications Derived from a Review of Japanese Case Law -. Legal Theory & Practice Review, 14(3), 523-555.

Hong, Tae-Seok and 권양섭. 2026, "The Legal Nature and Interpretation of the Crime of Abandonment of a Corpse with a Focus on Cases Involving a Prior Act Followed by an Omission — Implications Derived from a Review of Japanese Case Law -", Legal Theory & Practice Review, vol.14, no.3 pp.523-555.

Hong, Tae-Seok, 권양섭 "The Legal Nature and Interpretation of the Crime of Abandonment of a Corpse with a Focus on Cases Involving a Prior Act Followed by an Omission — Implications Derived from a Review of Japanese Case Law -" Legal Theory & Practice Review 14.3 pp.523-555 (2026) : 523.

Hong, Tae-Seok, 권양섭. The Legal Nature and Interpretation of the Crime of Abandonment of a Corpse with a Focus on Cases Involving a Prior Act Followed by an Omission — Implications Derived from a Review of Japanese Case Law -. 2026; 14(3), 523-555.

Hong, Tae-Seok and 권양섭. "The Legal Nature and Interpretation of the Crime of Abandonment of a Corpse with a Focus on Cases Involving a Prior Act Followed by an Omission — Implications Derived from a Review of Japanese Case Law -" Legal Theory & Practice Review 14, no.3 (2026) : 523-555.

Hong, Tae-Seok; 권양섭. The Legal Nature and Interpretation of the Crime of Abandonment of a Corpse with a Focus on Cases Involving a Prior Act Followed by an Omission — Implications Derived from a Review of Japanese Case Law -. Legal Theory & Practice Review, 14(3), 523-555.

Hong, Tae-Seok; 권양섭. The Legal Nature and Interpretation of the Crime of Abandonment of a Corpse with a Focus on Cases Involving a Prior Act Followed by an Omission — Implications Derived from a Review of Japanese Case Law -. Legal Theory & Practice Review. 2026; 14(3) 523-555.

Hong, Tae-Seok, 권양섭. The Legal Nature and Interpretation of the Crime of Abandonment of a Corpse with a Focus on Cases Involving a Prior Act Followed by an Omission — Implications Derived from a Review of Japanese Case Law -. 2026; 14(3), 523-555.

Hong, Tae-Seok and 권양섭. "The Legal Nature and Interpretation of the Crime of Abandonment of a Corpse with a Focus on Cases Involving a Prior Act Followed by an Omission — Implications Derived from a Review of Japanese Case Law -" Legal Theory & Practice Review 14, no.3 (2026) : 523-555.