간첩죄의 해석론과 개선방향

Abstract

The existing Criminal Act was enacted during the Korean War in 1953. The regulation of crimes concerning foreign aggression was originated from a draft of the revision of the Japanese Criminal Act in 1940 so that both regulations had almost same legal elements and legal punishment. The draft of the revision of the Japanese Criminal Act was enacted under influence of the German Nazi Criminal Act to have characteristics of militarism as well as totalitarianism and to punish a threat against the government system strictly. Since enactment of the Criminal Act, as many as 50 years has elapsed to make great change of politics as well as economy. These days, the world has become free from ideological confrontation to let each country maximize its own profits and benefits, and external threat against countries has overcome level of ‘armed provocation’ triggered by ‘enemy country’ to be either ‘threat not by enemy country but by foreign countries’ or ‘outflow of national wealth’ from point of view of actual profit. In particular, a variety of legal and systematic tools for national safety under special situation of confrontation between both Koreas were made to conflict with the crimes concerning foreign aggression of the Criminal Act. At the moment, the concept of national security and espionage is needed to make change and to be flexible enough to meet the realities. With the problem awareness, the study critically investigated requirements of the espionage that was important area of foreign exchange related crimes of the Criminal Act from point of view of comparison law to interpret and apply laws harmoniously between national security related law systems such as the National Security Act and the Criminal Act and to suggest legislative alternatives that could help national security. In particular, to reform existing law, the study introduced not only 1992 draft of the revision of the Criminal Act suggested by Special Committee of the Revision of the Criminal Act organized in 1987 but also 2009 draft of joint revision of both the Korean Criminal Law Association and the Korean Association of Criminology and considered the drafts as much as possible from point of view of legislation.