A brief study on mistake of law

Abstract

Modern society is full with a large number of so-called ‘administrative criminal law’. Legal experts also feel difficulty knowing all the rules or provisions. Fortunately, the legislators of Korean Criminal Law already had looked out in the modern society, they made the article 16 about mistake of law in the Korean Criminal Code. However, the Korean Supreme Court has diminished the effect of the mistake of law by rejecting the ignorance of law and not examining whether the sensible basis existed or not. Therefore, the Supreme Court should not exclude ‘ignorance of law’ from ‘mistake of law’, but the Supreme Court should examine whether the defendant has a rational basis on his or her reliance on the information or not in detail. Moreover, the article 16 of mistake of law provides the advantage of ‘no criminal liability’ for the actor. If a court interprets the applied scope of ‘mistake of law’ narrowly, this interpretation attitude will occur the violation of the principle of legality because the principle of legality does not permit a restrictive interpretation of an advantageous provision for the actor.