형법 제3조(속인주의) 문제의 본질과 법익론적 해결안

Abstract

Anyone 21 and older can legally buy recreational marijuana in California, USA, since January 1st 2018. Nonetheless, according to the Korean Criminal Act Article 3, a Korean national above 21 who legally buys and smokes marijuana in California could face criminal penalty by the ‘Act on the Control of Narcotics’ in Korea. In other words, Korean nationals who commit crimes outside of the territory of Korea become subject to the national Criminal Act based on the ‘absolute personal principle’ which determines the applicable scope of the Criminal Act by one’s nationality. Thus, it is questionable whether such standards in deciding the range of applications are valid or not. From the view of international solidarity, the ‘Principle of Dual Criminality Punishment,’ which applies the Criminal Act only when the country in which the crime has taken place approves its punishability, is discussed as a key solution to this. However, a country must not overlook its legal interests that it tries to protect through punishment. At the same time, the problems with the ‘absolute personal principle’ lies in its nature of punishing all crimes in Korea without rationally differentiating from the ones that are not punished outside. Therefore, this study aims to look into whether ‘the Principle of Nationality’ in the current Criminal Act is valid or not, by re-criticizing the current criticisms and its countermeasures on Article 3 of the Criminal Act, and if not, what could be the appropriate solutions.