형법 제3조 적용범위 축소의 필요성 및 입법적 해결방안

Abstract

Until now, prior studies on Article 3 of the Criminal Act have criticized the unconditionally active personal principle and discussed the need for amendments to limit the scope of application analytically or reduce the scope of application legislatively. In contrast, the precedent stuck to the position of interpreting Article 3 of the Criminal Act as being unconditionally applied while there are lower court cases that acknowledged the restrictions on the application through the Article 20 of the Criminal Act and Supreme Court cases that determined there is no crime because it occurred outside the country. Therefore, in this paper, I analyze the discussions of previous studies and the attitudes of precedents, and based on this, try to present legislative solutions that can help in long-term criminal law revision work in the future. In conclusion, the legislative direction of listing specific crimes to which active personal principle will be applied in consideration of the severity of crimes or protection of legal interests is in line with the principle of clarity in that it allows the public to clearly recognize and predict what crimes are punished under their own criminal law abroad. Furthermore, in a specific legislative method, it is considered appropriate to apply active personal principle to crimes that are considered to be serious and to harm their own legal interests, and to apply limited active personal principle on the condition of dual criminalty punishment in consideration of international solidarity for other crimes. However, it is reasonable not to apply Article 3 of the Criminal Act to violations of the Administrative criminal Law, considering that the violations are deeply related to the state and there are many criticisms that violations should be decriminalized considering the supplementality of the criminal law.