The Supreme Court of Korea has made the conclusions about the punishment of juristic persons based on the Act of natural persons. None of the above rulings, however, provide a concrete ground for this conclusion. It is merely to state that joint penal provisions is the legal basis for reaching this conclusion. In addition, the above rulings do not provide any clue as to what part of the joint penal provisions should be interpreted in order to obtain such conclusions. The purpose of this article is to identify the legal nature of legal provisions and legal requirements for juristic persons punishment. However, there have been no studies on the legal nature of the joint penal provisions in academia or in practice. Thus, this article interpreted the legal nature of the joint penal provisions through further and subtile interpretation, and supplemented what the Supreme Court of Korea did not say.

Procedural fraud is a type of a so–called triangular fraud targeting to mislead the judgment of the court, which differs from the structure of a general fraud in that it has some aspects of deeming it sufficient to satisfy its constituent elements. When a broad-minded approach is taken to interpret the element of ‘pecuniary advantage’ in the context of fraud, it is not impossible to construct a theory that procedural fraud in compulsory execution is consummated when a judgment of the executive court at the intermediate stage of the enforcement process is identified as such ‘pecuniary advantage’. However, since the compulsory execution procedure is a series of procedures in which various actions are cumulatively carried out to satisfy the claim based on court judgment/arbitral award which has become final and conclusive, the time of consummation should be when the claim is satisfied or when the compulsory execution procedure terminate. Regarding the time of consummation of procedural fraud, which is related to the issuance of a collection order in a compulsory execution procedure, it is insufficient for the execution creditor merely to obtain an issuance of a collection order but further need the satisfaction of claim by actually collecting the seized claim etc.

Korean Supreme Court’s case, 2015 Do 15798 sentenced on January 14, 2016 dismissed the defendants’ appeal. In the case the executives of the Housing Redevelopment and Maintenance Association substantially performed their duties even after they had lost their authorities. The court, however, stated that the fairness of performance, social trust should be protected as long as they were registered as executives in the association’s register at the time. It also pointed out that the executives’ duties were not transferable or sellable. In order to logically justify the judgment the concept of ‘public official’ should be expanded in terms of legal principle. Korean Constitutional Court, however, had considered this kind of concept expansion as an unconstitutional interpretation in its 2011 Heonba 117 case. It logically follows that the Supreme Court should not make judgement such as the above appeal case which can be an unconstitutional interpretation. It cannot be interpreted that City Maintenance Law’s article 84 which regulates ‘legal fiction of public officials in applying penal provisions’ includes ‘the substantial executives’ of the above appeal case. This is a ‘double legal fiction’ which exceeds interpretation of legal texts permitted by Criminal Law and also a wrong analogy prohibited by the law. There can be a practical need to punish a certain act. It is, however, impossible to punish the act without any relevant legal stipulation. This is the principle of legality. The solution to a defect in legislation is not an analogical interpretation, but, simply, legislation.

This article is based on the recent Supreme Court decision on Article 66–2 of the Industrial Safety and Health Act, which calls for the criminal responsibility of the employer in the event of a worker being killed or injured because of violation of the safety measure, I want to critically analyze some of the problems that appear. There was some comment on the judgment of the labor law in academia, and it was positively evaluated that the significance of the case was further on the position of the Supreme Court. And it is pointing out the problem of the law of the industrial safety health law itself. However, my judgment is that there is not a change in the judiciary that recognizes the nature of the employer as an employer in the case of the rise of the contractor’s worker, but because the employee of the laborer accidentally performed work supervision duties at the accident site, But only as an employer in the punishment rule, and as a result, the original company was punished, but it does not appear to be a judicial judgment with great significance. If the employees of the original company are not sent to the work site where there is a possibility of accidents in the future, the possibility of punishment by the original employer is still insufficient if they are supervised more poorly. However, in my judgment, the object of judgment is the inherent problem of the Industrial Safety and Health Act, namely, the listed list of the constitutional elements of the crime, which is appended to the end of the individual statute, a special penalty constitutional requirement called “administrative criminal law” The Court has not specifically pointed this point, but instead acknowledged the corporation’s liability on the basis of exceptional facts. Although the Court recognizes the inherent limitations of the judiciary which must be bound by the given laws and the scope of the indicted cases, the Court is also concerned with the legality of the law, It should be pointed out.

Der vorliegende Beitrag behandelt die logische Struktur der hypothetischen Einwilligung im Vergleich mit dem rechtsmässigen Alternativverhalten. Infolge einer mangelhaften Aufklärung wird die Einwilligung zur Unwirksamkeit und ist der Erfolg rechtswidrig. Mit der Ersetzung durch eine ordnungsgemässe Aufklärung wird die Einwilligung zur Wirksamkeit und ist der Erfolg rechtsmässig. Beide Erfolge sind deshalb nicht die gleichen. Die Zurechnung des Erfloges muss daher abgelehnt werden. Auf der Tatbestandsebene sind aber beide Erfolge beim rechtsmässigen Altenativverhalten anders. Die Zurechnung des Erfolges muss also ausgechlossen werden. Die Übertragung der Schlussfolgerung der Tatbestandsebene auf die Rechtswidrigkeitsebene ist deshalb logisch unmöglich. Dies zeigt die logische Unstimmigkeit der Argumentationsfigur der hypothetischen Einwilligung. Die von der koreanischen Rechtsprechung suggerierte Vergleichbarkeit der hypothetischen Einwilligung mit dem rechtsmässigen Alternativverhalten erweist sich also bei näherer Untersuchung aus logischen Gründen als unhaltbar. Von daher behandelt die koreanische Rechtsprechung ohne Grund die Aufklärungspflict als Sorgfaltswidrigkeit. Das Problem ist wieder zurück zur Tatbetandsebene verlagert. Dann stellt sie diese Pflichtwidrigkeitszusammenhang fest mit der Kausalität. Sie versteht diesen Zusammenhang als Kausalzusammenhang. Der Zusammenhang zwischen Aufklärungsmängel und Erfolg ist kein Kausalzusammenhang. Sie sind nur rechtliche Vorraussetzungen und rechtliche Folge.

The point of this Supreme Court Cases are (1) Does the accused’s act putting up maximal collateral constitute a charge of embezzlement? (2) Should the act of disposal after the embezzlement be punished as an independent crime? In my relationship with breach crime of trust, the embezzlement has a character as the special law. Therefore, where the embezzlement is concerned, it needs to be strictly interpreted. If the accused’s act has not reached the level to trespass on some one’s proprietary rights, the establishment of embezzlement should be denied and the breach crime of trust should be reviewed. On the one hand, the term “Unpunishable Act After Crime” means that the act after crime (the post act) is unpunishable whenever the punishable crime (the previous act) is committed and it contains a whole illegality of the post act. In this case, nevertheless if the post act is punished as an independent crime, it occurs the problem of the double risk necessarily. On the other hand, the illegality of the post act exceeds the previous one, it is no more unpunishable. In the several criminal cases, the “Unpunishable Act After Crime” is mentioned in the property crimes like embezzlement, fraud, malpractice, and theft. In the criminal investigation and the trial, the “Unpunishable Act After Crime” could influence a judgment of the court, an arraignment of the prosecutor, a statute of limitations, an appeal, and so on. Eventually, the concept of the “Unpunishable Act After Crime” prevents a suspect from the double punishment or double risk. But it may cause harm to substantial criminal justice because unpunishable act after crime shall be exempted from legal sanctions even though it should be a punishable crime in a different circumstances. So it is important that establish a elaborate standard to define if a certain act is an unpunishable act after crime or not.

The object judgment judges the meaning of the dangerous thing among the requirements that the special crime can be established in criminal law. Specifically, it is whether or not an object used by an actor in an assault situation corresponds to a dangerous thing. The meaning of a dangerous thing that constitutes a special crime is generally explained as having the property that the thing can harm human life or body. The Supreme Court of Korea explains about that: According to a specific matter, when using the object in perspective of social common sense, it is important to judge whether is the thing that can be recognized as dangerous by the victim or the third person. However, the results of actual judgments by the Supreme Court have many questions in terms of the specificity of interpretation and ensuring of predictability. And the objectivity of judgment criteria for dangerous objects is doubtful. Through the process of discussing the meaning of danger as a constituent of crime and the basis of illegal punishment of special crime, this article studies the meaning of dangerous things, which is a requirement for special crimes. As a result, this article sees the freedom of the victim’s will to escape the crime as a protection against special crimes under criminal law, suggests that the possibility of overcoming the resistance of the victim is the criterion for judging the danger of the object. Accordingly, when an actor carried an object in a crime, whether the thing is a dangerous thing is assessed by the following criteria : Whether it is possible for the general assessment of the fact that the object normally provides the actor with an absolute advantage of strength and makes the victim aware of the difficulty of defending.

The Supreme Court recognizes that if there is a possibility of propagating both defamation and insult, it is public. Whether or not a conversation in mobile or internet group chat rooms where only two or only a few participants are affected is a libel, it is also important whether the publicity is recognized by the possibility of propagation. The theory of propagation is still a meaningful theory. This is because, in order for publicity to be recognized, an indefinite or large number of people must not actually exist in a crime scene. In addition, defamation or insult by writing on the internet or mobile are far more dominant compared to defamation or insult by speech, and the application of the theory of propagation is beneficial. In the case of defamation or insulting an unspecified person, admitting the theory of propagation does not lead to unreasonable results when compared with the recognition of publicity by only a minority. In the case of insults, it is possible to spread the expression in a way that can not just be a mere contemptuous expression but also deteriorate the external evaluation of the victim. The theory of propagation that has been firmly supported by decades of decades has been criticized for freedom of expression, but it is not inevitably wrong. Because it can be relieved in accordance with Article 310 and Article 20 of the Criminal Code for matters that may unduly undermine freedom of expression.

Recently, the scope of indecent act by compulsion has widened significantly. Also, the citizens are increasingly aware that most cases of indecent assault are done by forcible compulsion so, there is no animosity towards the expansion of indecent act by compulsion. However, it is somewhat inappropriate to expand the role of indecent act by compulsion in our criminal law. Because, in our criminal justice system, it is not intended to punish anyone for abusing all sexual harassment, but it is designed to punish people for violating their sexual decision–making rights by mobilizing force. Of course, indecent acts are reprehensible. But, it is necessary to think again about trying to punish indecent acts in the area of indecent act by compulsion. That is why the responsibility of the criminal law can be damaged. In such a sense, I agree with the supreme court decision in conclude. However, there has been a growing social interest in recent sexual assault. And the demand for punishment for indecent assault is on the rise. Therefore, it is a great burden to insist on reducing the role of indecent act of compulsion in criminal law. This paper does not claim to be lenient on sexual assault by reducing the role of indecent act of compulsion. but, within the principle of criminal law, indecent act of compulsion in criminal law should be more rationally applied. Because, criminal punishment is not the master key to solve all crimes. Indecent act by blitz(sexual harrassment) should not be included in the concept of indecent act by compulsion. Thus, indecent act by blitz should be punishable by a separate crime as sexual harrassment. And indecent act by compulsion should just play its own role. as it were, indecent act by compulsion should play its planned role in principles of responsibility of criminal law.

This article reviewed the major property criminal cases(i.e. larceny, fraud, embezzlement, and Breach of Trust) in recent five years. As a continuing trend since 2000, One of the important trends is that the criminal laws keep its distance from civil cases in order to prevent Criminalization of Civil Cases and guarantee the functions as last resources. This trend can also be seen in embezzlement and Breach of Trust. Although It’s important that the criminal laws do not intervene too much in private domains such as civil cases, It is necessary to interpret and apply strictly the elements of crime in view of the principle of nullum crime in order that Law–abiding citizen may predict whether each crimes will predict Criminality of each crimes. However, The question now arises as to whether the criminal laws judge independently apart from other laws, extend the range of elements of crime, admit the elements unstipulated in the text so that the laws apply analogical interpretation which is against the principle of nullum crime, or expand requirements of crime. Therefore, although the independent interpretation is needed, it would be desirable to limit range of punishment at a minimum by respecting principle of Subsidiarity or the principle of nullum crime. Also, Whether the elements of property is defined clearly should be carefully studied. If needed, Legislative efforts to continuously rearrange the elements is essential.

Das Urteil ist von großer Bedeutung, da durch die Entscheidung einen Maßstab, mit dem Tatobjekt einer Unterschlagung ausführlich festgelegt werden kann, erstmals aufgezeigt wurde. Im vorliegenden Fall hat der Angeklagte, der Vorsitzender des Unternehmens ist, einerseits ein schwarzes Konto geschaffen und verwaltet, indem Ware des Unternehmen ohne authentische Unterlagen verkauft wurde. Andererseits wendete er den illegalen erworbenen Betrag zum Zweck seines eigenen Interesses auf. Das Gericht entschied, dass sich die Bildung des schwarzen Kontos von seiner Aufwendung des Geldbetrags unterscheiden und die letztere Tat als die Unterschlagung betrachtet werden muss. In diesem Zusammenhang ist das Tatobjekt der Unterschlagung nicht die Ware mit sich, sondern der Preis des Verkaufs. Dies Urteil basiert auf die bestehende Entscheidung des Obersten Gerichtshofs. Nämlich sei die sog. „Absicht rechtswidriger Zueignung“ von der subjektiven Vorhaben des Täters abhängig. Ferner sollte es berücksichtigt werden, um die Zeitpunkt der Vollendung der Unterschlagung zu bestimmen, ob diese Absicht rechtswidriger Zuneigung verwirklicht oder vom Täter dargestellt wurde. In diesem Zusammenhang kann das Urteil einerseits berechtigt, da die Voraussetzung der Unterschlagung strikt verstanden wurde und durch diese strikte Auslegung eine Erweiterungsmöglichkeit der Strafbarkeit vermieden werden konnte. Jedoch ist das Urteil problematisch, da es den eigenartigen Umstand sowie Besonderheiten des vom Täter während 9 Jahre wiederholt begangenen Verbrechens übergangen hat. Im Fall der Unterschlagung, die insbesondere mit dem schwarzen Konto verbunden ist, ist es schwer, die Tatverdacht zu beweisen. Zunächst ist Verwendungszweck des geheimen Fonds schwierig nachzuweisen. Darüber hinaus steht es noch schwerlich zu erweisen, sofern die „Absicht rechtswidriger Zueignung“ von Täter nicht ausführlich verwirklicht oder zum Ausdruck gekommen wurde. Nämlich könnte der Täter behaupten, dass das Konto nicht für sein eigenes Interesse, sondern zum Zweck von Geschäften seines Unternehmens aufgewendet wird. Daher muss diese schwache Stelle der Praxis mit Rücksicht auf Besonderheiten des einzelnen Falls bewältigt werden.

Even after the Article 237–2[Article 237–2 (Reproduced Documents, etc.) For the crimes as prescribed in this Chapter, any copies of documents or drawings reproduced using the electronic reproduction machines, facsimile telegraphs or other similar apparatus, shall be considered as document or drawing.] of the Penal Code was created, the world has changed and also shown a technological progress at a pace that is difficult to follow, and as a matter of fact, it is being questioned whether it will be able to engage or replicate all duplication techniques. It is said that Article 237–2 is a legislative error to be abolished and all copying can not be counterfeited by legislative measures of ‘copying is conterfeiting.’ It is also strongly voiced to point out the supreme attitude of legal interpretation of the Supreme Court, which does not properly reflect the reality of computer–based document processing and use, such as changing the image on a computer screen. The Supreme Court’s recent ruling, which is the subject of a critical analysis of this paper, is drawing attention to the issue again. The purpose of this article is to clarify the current law and the interpretation of the law of the Supreme Court, and examine the argument of the interpretation by comparing and examining several precedents showing various types of behavior among the precedents of the Supreme Court up to now.

Although the Republic of Korea has made remarkable economic development, the government’s corruption index is at the lowest level among OECD countries, and it is a fact that corruption can not escape from the widespread state in many fields. In order to achieve the growth engine of the nation, this liquidation of corruption is an essential element. From this national mission, Kim Young–Ran’s proposal was presented at the 19th National Assembly for the purpose of clearing up corruption and enhancing integrity of the public societies. After consultation between the public hearing and the related organizations, the “Kim Young–Ran Law” was enacted, the “Act on the Prohibition of Illegal Filing and Receipt of Money, etc.”. Article 1 of the Act stipulates that the illegal appeal against public officials and the receipt of money such as public officials shall be prohibited so as to ensure the fair performance of public officials and ensure public confidence in public institutions. Although the legitimacy of these legislative purposes is all affirmative, there is criticism that the enactment of the law without a careful examination of the effects of the law has had a significant negative impact on the national economy as well as unconstitutional regulations. In this paper, the criticism of the decision of the Constitutional Court and the unfairness of this law are examined through the critical analysis of the unconstitutional judgment decision of the case 2015 HUNMA 236, 2015 HUNMA 412, 2015 HUNMA 662, 2015 HUNMA 673. And the unconstitutionality of the law. The amendment should amend and supplement the legislation to ensure that political power is provided to prevent institutional abuse, such as media and means for static elimination.

In 2007, the Criminal Procedure Act has been changed into actually new law reflecting the social demands to protect the rights of defendants and suspects in the criminal procedure. The Criminal Procedure Act was revised in 2011, adding the relevance as a requirement of seizure and specifying the range and method of seizure or search on digital evidence. And it supplemented the method of proving the authenticity of digital evidence with some amendments in 2016. It can be said that it has continued to influence the Supreme Court precedent and the precedent also influenced legislation and investigation practice and led to change. This article examines the trends of major cases in the proceedings and evidence law since 2007. The Supreme Court’s cases on investigation procedures and evidence law have consistently emphasized the due process principles of the Constitution and the Criminal Procedure Law, and apply strict standards for existing practices throughout the investigation process including voluntary company, arrest, interrogation, and occasionally have suggested standards and directions of practice from the perspective of judicial control. In particular, in 2007, the Supreme Court ruled that the exclusionary rule of illegally obtained evidence was applied to use of material evidence and the evidence that was illegally collected by the investigating agency in violation of the due process could not be used as evidence of guilt in principle. In the exceptional case that the procedural violation is not equivalent to the violation of the substantive contents of the due process, and the exclusion of the evidence is against the harmonization of the due process and substantive truth in the Constitution and the Criminal Procedure Law, the evidence can be used. Thereafter, the Supreme Court has elaborated the criteria and exceptional jurisprudence on the illegally obtained evidence through various precedents. Since 2007, there have been important precedents related to the seizure of digital evidence, the authenticity and exceptional application of hearsay rule on digital evidence, and specific precedents on the interpretation and standards of exceptional application of hearsay rule of the revised Criminal Procedure Act, which were also the starting point of a new discussion. And this article suggests that, for right judicial justice, the two axes of the due process principle and the request for the discovery of the substantive truth should be mutually realized in harmony rather than abandoning any one.

In Constitutional Law, there is provided the principle of warrant request which consist of provisions that request the warrant issued by judge for several situations. According to this principle, the processes by which the warrant can be gained are stipulated in laws for each area. To get the correct answer to the question, when and for which action the warrant should be gained, it may be important to consider comparative method with the laws of other countries and to study the general theory, but it should be preferential to look at in detail how the wording and phrasing are made in the provisions of korean constitutional law. Case 1 and Case 2 have logical structure based on the dichotomy between the criminal investigation in which the warrant be requested and the administrative survey in which not. But the Constitutional Law provide for the arrest, detention, search and seizure, the request of law in the provision 12. 1., the request of warrant in criminal investigation in the provision 12. 3. and the request of warrant for the search and seizure in a person’s house in the provision 16. Therefore, it should be not construed to mean that all search in administrative survey can be executed without warrant, but that only the search in administrative survey other than a person’s house can be executed without warrant. According to the provision 16, the search in a person’s house can be done only with warrant, regardless of the search in administrative survey. From this viewpoint, It could be said that the mail inspection in Case 2 need not warrant, not because it is adminstrative survey, but it is adminstrative survey and the search is not for a person’s house.

In accordance with the provision of Article 308–2 of Criminal Procedure Act, any evidence obtained in violation of the due process shall not be admissible. This Article newly inserted by Act No. 8496, Jun. 1. in 2007. Since then, there has been a series of a decision on the evidence, including the exclusionary rule, the fruits of poisonous tree doctrine, and the circumstance that would give exceptionally the admissibility of secondary evidence. In addition, there were a number of decisions that required to be prepared in compliance with the due process and proper methods in giving the admissibility of evidence in relation to the protocol, etc. prepared by prosecutor or senior judicial police officer. As a whole, due to the influence of making a stipulation of the exclusion of evidence illegally obtained, it is clear that the case law in the field of evidence law is proceeding in a direction to emphasize the guarantee of the due process. And in accordance with the provision of Article 314(Exception to Admissibility of Evidence) or 316(Statement of Hearsay) (2), in the case of Article 312 or 313, if a person who is required to make a statement at a preparatory hearing or a trial is unable to make such statement, which is impossible to exercise the right of cross–examination, the relevant protocol and other documents shall be admissible as evidence: Provided, that this shall apply only when it is proved that the statement or preparation was made in a particularly reliable state. In relation to the above provisions, court’s decision maintains a more rigorous interpretation as a requirement for admissibility of hearsay evidence. In addition, court’s decision seems to be proceeding to apply strictly requirements for admissibility of evidence of documents or output from the digital storage media, explaining the requirements of seizure and search of digital storage media in response to overall scientific and information– oriented society. And the recent decision describes the problem of establishing the judgment criteria of scientific evidence as a solution to the problem of misuse of science among the problems in the process of interaction between science and law in accordance with the criminal case. In conclusion, it is still a question of how to realize concretely the general principle that the two sets of demands, namely the discovery of substantive truths and the protection of the human rights of defendants (the guarantee of due process and the deterrence of illegal investigation) under the exclusionary rule.

1. The Supreme Court of Korea (hereinafter KSCt) handed down a very epoch making ruling (abbreviated as ‘Chong Kun Dang Decision’ hereinafter) about the search and seizure of digital evidence in 2015. Until now 7 articles have been published, which took the commenting of this decision as the central theme and did the following discussions seriously. In this paper, I intend to focus on identifying what the Chong Kun Dang Decision means and what are grounds of the ruling rather than criticizing any argument and ground. This is because the conventional analyses are not successful in explaining the exact meaning of Chong Kun Dang Decision. 2. With the Chong Kun Dang Decision, the issue of “the first issuance of warrant for the search and seizure of evidence related to the alleged abuse of trust → the carrying out the execution of warrant(physical seizure ⓐ, removal of the information storage medium at the scene) → ‘physical seizure ⓑ’ (imaging duplication) → searching for digital information (off–site search) → in case of accidental finding of the irrelevant information, does the investigating agent become obliged to delete irrelevant information?” emerged as an urgent issue. Although Lee Wan–gyu (2015) and Park Min– woo (2016) already discussed this issue, a more in–depth inquiry is necessary. 3. The methodology of this paper is as follows. The 2014, US Second Circuit panel handed down a ruling (United States v. Ganias) seems to have given some impression to the formation of a majority opinion (and separate opinion, supplementary opinion) of Chong Kun–dang decision. Therefore, it is necessary to compare precisely the issues and arguments of the ‘2014 Ganias panel ruling’ and the Chong Kun Dang decision. In this context first of all I attempted to reconfigure the facts of two cases for precise comparison in chapter Ⅱ. 4. In chapter Ⅲ, I try to make a precise comparison of the grounds of Chong Kun Dang Decision (2015) and Ganias panel ruling (2014). The focus of the comparisons are as follows. First, is there an obligation to the investigating authority to delete and discard irrelevant information after separating the related information and the irrelevant information? Second, presence of dominion of the investigating authority on the information that contains related information and irrelevant information. Third, why the deletion of irrelevant information become a problem? Fourth, what is the legitimate response of the investigating agency that witnessed evidence of irrelevant crime? Fifth, conflicts between means (due process) and purpose (substantive truthfulness). Sixth, among series of actions taken by the investigating authority what can be considered as the search and seizure measures of digital evidence?

In the year of 2016, 152 criminal cases by the Korean Supreme Court(KSC) are registered on the internet homepage of the Court. 5 criminal law cases of which are decided by the Grand Panel. In this paper, 2 cases of above 5 cases and other several cases are reviewed which seem to be comparatively important. In addition, are reviewed some cases by Korean Constitutional Court which decided the constitutionality of the punishing prostitution and the penalty against the robbery accompanying death by negligence. All the reviews are constituted as follows: 1. The Fact of the Case, 2. The Summary of Decision and 3. The Note.