공무집행 중 발생한 주한미군범죄와 「한･미 SOFA」에 따른 경합적 형사재판권에 관한 고찰

Abstract

One of the most controversial issues of SOFA that every countries concluded with the U.S. is the question of what constitutes "an act or omission done in the performance of official duty." The ROK-U.S SOFA also includes the same provisions and hence, the same controversy: U.S military authorities have primary right to exercise jurisdiction over U.S armed forces members in relation to offenses arising out of any act or omission done in the performances of official duty. The ROK-U.S is based on two types of jurisdiction, exclusive and concurrent. An identical framework is found in the NATO SOFA. Article XXII of the Korea SOFA provides that the U.S. military authorities have the right to exercise exclusive jurisdiction over members of U.S. armed forces "with respect of offenses, including offenses relating to its security, punishable by the law of the United States, but not by the law of the Republic of Korea." This exclusive jurisdiction applies to Korea authorities in the same way respect to offenses by the U.S service members that are punishable by Korean law but not by U.S. law. In cases where the right to exercise jurisdiction is concurrent, the authorities of Korea have primary jurisdiction, but an exception exists in relation to offenses committed solely against the property or security of the United States or solely against another U.S. armed forces member, and offenses arising out of any act or omission done in the performance of official duty. Generally, a country with is more interested in offenses committed than the other in an effort to have primary right to exercise. If the offenses committed solely against the property or security of the sending state, receiving state in fact wouldn't be interested in indicting those offenses. On the other hand in line with territorial principle, Korea will have the primary right to exercise the jurisdiction. This article will analyze the official duty that sending state always trying to have the primary right to exercise, causing inevitably friction with host nation in terms of the concurrent jurisdiction para 3, art 22 in ROK-U.S. SOFA rather than the inequality and fairness of SOFAs, which every host nations have concluded with the U.S. It will also recommend the resolution to minimize the friction between ROK and U.S. in satisfying both nations as they exercise the criminal jurisdiction in a way of clarifying the official duty certification and in standard, limit, analysis about an official duty.