The Supreme Court of Korea has adopted a methodology of rigorous grammatical interpretation in order to satisfy the Constitutional requirement of law-binding in judgement of criminal case. However, the principle of law-binding does not mean the so-called ‘legal state.’ For this reason, the national justice system of the law recognizes the supplements of the judiciary. This article observes criminal judgement that the Supreme Court of Korea is suspected of going beyond just a supplementary role to ‘judicial justice’. As a result of analyzing the criminal judgment, the Supreme Court found that the following folly is used in using deductive syllogism. First, Producing of non-existent premise. Second, Arbitrary manipulating or processing of a premise. Third, excessive normative interpretation of a premise. Fourth, Formulating of general clause. Therefore, this article emphasizes the task of criminal law discipline which should prevent the judicial branch from walking the way of judicial jurisdiction by critically examining the various act of manipulation of Supreme Court which is carried out in the name of providing the legal basis for the preconceived conclusion in the deduction process.

Eine der wichtigsten Variablen, die die Rechtsprechungen von Strafsachen verändern können, ist der Wandel der Gesellschaft. Im Falle einer Gesetzgebung, die die Bewertungsfaktoren von Richtern als einen sogenannten “normativen Tatbestandsmerkmal” berücksichtigt, der die Möglichkeit einer flexiblen Auslegung unter Berücksichtigung des sozialen Wandels eröffnet, kann in dem Fall untergebracht werden. Wenn es schwierig ist, ein neues soziales Phänomen als eine bestehende Rechtsprechung zu akzeptieren, kann die Beibehaltung der bestehenden Rechtsprechung strafrechtliche Probleme verursachen. Es ist jedoch auch eine wichtige und schwierige Aufgabe, den sozialen Wandel als Rechtsgrundsatz zu akzeptieren. Im Prozess des sozialen Wandels variiert die Änderungsrate, die mit Kriminalfällen verbunden sein kann, von Fall zu Fall. Erstens liegt die Geschwindigkeit des schnellen Wandels im Bereich der Computerentstehung und -diffusion. Im Prozess der technologischen Entwicklung, die bisherige Handlungsmittel ersetzt, werden die bestehenden Rechtsgrundsätze angewendet, um den Unterschied von der veränderten gesellschaftlichen Realität zu bewirken. Die Entwicklung der Kopiertechnologie und die Verbreitung der Computernutzung ergänzten die Lücke zwischen Normen und Realität in gewissem Maße durch legislative Maßnahmen im Jahr 1995, aber die Kontroverse setzt sich im Rahmen der bestehenden Rechtsprechung fort. Zweitens sind die Veränderungen der Praktiken der wirtschaftlichen Transaktionen und die Wahrnehmung der Sexualmoral relativ langsam. Die neuen Rechtsgutverletzungen, die sich aus dem sozialen Wandel ergeben, sind legislative Fragen, aber gerichtliche Maßnahmen sind nicht möglich. Wenn aufgrund sozialer Veränderungen ein neuer Tatobjekt- oder Verhaltensakt in der bestehenden Rechtsprechungsdogmatiken auftaucht oder gegen den strafrechtlichen Grundsatz verstößt, soll der Richter eine Änderung der Rechtsprechungsdogmatik vornehmen.

The purpose of the confiscational or penalty of criminal gains is to deprive the crime of its illegal profits and prevent it from being retained. On the other hand, under criminal law, joint crime, teacher crime, and accessories are intended to be punished for criminal acts and their degree of participation, so the two do not necessarily have to be consistent in logic. In other words, if a person is merely an accessory and receives sufficient income from a crime through crime, he or she should pay an additional charge of criminal profits obtained in the form of wages, etc. but if a person is joint principal offender and receive not sufficient income from a crime through crime, he or she do not need to pay an additional charge of criminal profits obtained in the form of wages, etc. In the result, who will pay the penalty from depends on the attainment of the purpose of the confiscational or penalty of criminal gains.

In a sex offender ecosystem, it is necessary to ensure that rape is applied only to violent breaches of at least sexual self-determination. However, it is doubtful that the Supreme Court may have too broad a range of rape cases in this case. On the contrary, The first and second trial courts seem to be wary of further rape charges. On the basis of this case, it is likely to be the type that corresponds to the sexual compel in the German criminal law. So it would be more appropriate to introduce and punish the sexual compel in legislation if consensus was formed on the need to punish people for forcing sexual behavior. That would also eliminate the need to stretch and punish rape charges. The Supreme Court calls the degree of rape and intimidation the most serious offense and threat. But, it seems that the comprehensive judgment system applies the standards of violence and intimidation of consultation. However, such a comprehensive judgment does not provide a clear standard. Therefore, in this case, the Supreme Court made a different judgment from the first and second trials. However, the main reason why it is difficult to consistently punish sex crimes is because there is a big problem with the current sex criminal law system. As the wrong legal system is filled with diverse legal interpretations, the burden is entirely on citizens. Therefore, it is inevitable that there continue to be disturbance in the ecosystem of sex crimes. The preferred way to fix this mess is for lawmakers to fix the current sex crime system. And the court should try to help citizens form a proper consciousness of norms on sex crimes through a consistent and clear application of the law.

The purpose of the Act on The Protection of Children Against Sexual Abuse is to prepare procedures for relieving and assisting victimized children and juveniles, and protecting them against sexual abuse and assisting them to become sound members of society. Any person who commits an offense of indecent act against a child or juvenile shall be punished by imprisonment with labor for a limited term of at least two years or by a fine of at least ten million won, but not more than 30 million won. From the perspective of children and juveniles, protection of their sexual autonomy should have special meaning. Understanding of self, will, sex, age, and environment of children must be considered when the court make decision on the relevant cases. Sexual violence against children must have devastated effect on their development towards a man or woman who fully enjoys his or her own self determination of sex. The case reviewed by this essay is on the issue of medical treatment by pediatrist and indecent act against children patients. The court denied victims’ statement on their victimization as a guess or emotional reaction, not real experiences. Investigators and judges should have special understanding on the characteristics of child victim’s statements on his or her experiences. Most of all, the criminal court in sexual violence cases should pay attention not to the consistency of statement by children, but to the special behaviour and mind of their victimization, and further to the social context of sexual violence.

1. First of all, I intend to review the elements of fraud crime in Article 347 of criminal law and the meaning of ‘issuing act · issuing intention’(Ⅱ). I try to investigate the meanings of theories on why we use ‘act and intention of disposal’, which is not specified in the law, and what ‘issuing act · issuing intention’ means. In addition, I intend to analyze fraud related precedents of Supreme Court(Ⅲ). I am going to organize Supreme Court’s position of precedents from 1970s to February, 2017, and understand the tendency. Next, I will analyze majority opinions and minority opinions of the supreme court decision on fraud in February, 2017, which is the subject decision of this study(Ⅳ). I try to research from what perspectives the demonstration is done. I also consider the problems and improvement plans of the supreme court decision’s changing precedents. I will suggest an independent legislative change in the principles of safety, reliability and retroactive prohibition(Ⅴ). Lastly, I will consider the problems and improvement plans of Supreme Court sentencing’s sentences(Ⅵ). I will summarize the above contents at the conclusion(Ⅶ). 2. The supreme court decision, Supreme Court 2017. 2. 16. Decision 2016Do13362, changed the existing opinions. The following is the summary of the supreme court decision: “The disposal intention is enough if the deceived who is in the mistake recognizes what he or she is doing. It is not necessary to recognize the result of the act. The act of the deceived who sealed and signed on the disposal document can be considered as disposal act. Even though the deceived didn’t recognize the specific details or legal effects of the disposal result, or the document, he or she recognized the act of sealing and signing on the disposal document, so the disposal intention of the deceived is also acknowledged.”(the precedent that confirmed the theory of issuing intention necessity and the theory of issuing act recognition) 3. I agree with the conclusion of the majority opinion. The meaning of the Supreme Court decision is that the deceived(victim) needs issuing intention, and the issuing intention contents are enough with issuing act recognition(in the expression of academic field and precedents, the theory of disposal act recognition, issuing situation recognition, damage causing recognition). “The victim and 7 others fell into an error due to the defendant’s deceiving act, so the deceived sealed and signed on the written application for registration of the right to collateral security settings needed for the defendant to loan 100 million won by mistaking for a document for furnishing of security for 30 million won, and the deceived had financial damages. Therefore, the act of the victim is also considered as disposal act in the crime of fraud.” This arranges many controversies clearly. I think the crime of fraud should be legally interpreted from the perspective of a person who performs the act. If the deceiving recognizes the issuing act of the deceived(victim), the deliberation can be acknowledged by subjective elements of a crime. 4. I think many precedents about Supreme Court’s ‘disposal intention and disposal contents of fraud’ had problems. It shouldn’t be interpreted too strictly under the term of ‘swindling signature’. Writing ‘document’ in deception or being issued with ‘seal’ and ‘authentication certificate of one’s seal’ is totally different from simple ‘document related crime’. The criminal intention at the time of act is different, and the risk of the second act of infringing the rights is very high. If too strict interpretation is done in the objective elements of a crime because the issuing act of the deceived is too concentrated, the criminal law can’t defend law and order.

It often happens that after someone purchases a specific part in one parcel of land, a shared equity registration is made according to the area ratio of the specific part in the whole land, and this legal relation is called co-ownership of divided ownership. This is substantially sole ownership of the relevant party on the inside and takes the form of “co-ownership registration” on the outside, but Korean precedents solve this problem by the so-called co-title trust principle by citing the legal principle of title trust. Therefore, in the relation of co-ownership of divided ownership, each co-owner can dispose of his or her specific division part independently and freely transfer the corresponding shared equity registration. However, if a land is divided into independent parcels by specific division parts owned separately, our precedents consider that the shared equity registration of the co-owner name transferred to each remaining parcel other than the parcel corresponding to each specific division part can no longer be regarded as a registration to represent a parcel corresponding to a particular division part of the co-owner, and only the co-title trust relation between the co-owners will survive. Thus, each co-owner is in the position of a person keeping the shared equity in relation to the other co-owners with respect to the shared equity of his or her name transferred over each remaining parcel, and if he or she disposes of it, an embezzlement is established. But it is doubtful whether a shared equity can be regarded as a property of embezzlement in the “person who keeps other’s property” among constitutional elements of embezzlement. Shared equity, which is a quantitative part held by a co-owner, is an idea that can govern things, and it is problematic to regard it as a property. Therefore, even though Korean precedents acknowledge embezzlement in this case, it is reasonable to regard it as a breach of trust rather than embezzlement.

In the court case of Jun 29 2017 ruling 2017Do3808, Supreme Court ruled that breaking the duty of returning or discarding trade secrets after resignation by revealing trade secrets to competitors or keeping it for own interest is enough to establish post-resignation professional misappropriation. And Supreme Court decided ruled that one cannot be a subject of professional misappropriation after 1year of resignation unless ‘special consideration’ is needed. Therefore, the accused, who created a program based on company’s particular file, cannot be a subject of additional professional misappropriation since the action of the accused was based on already-established professional misappropriation. Furthermore, the Supreme Court ruled that the accused complicit cannot be a complicit of the professional misappropriation since the action of accused complicit is based on already-established professional misappropriation as well. Therefore, the Supreme Court returned the case to the lower court. Based on this case, there is question regarding the relationship between perpetrated time of professional misappropriation and the status of being in charge of the transaction of others’ business after resignation. There is also a question regarding the level of execution based on the speciality of professional misappropriation. This case study is done based on those questions. Then this case study did the reviewed the relationship between the intention of misappropriation and intention of unlawful gains that needs to be proved in order to establish professional misappropriation crimes. The Supreme Court’s ruling that the accused is a subject of already-established professional misappropriation due to nonperformance of returning or discarding trade secrets is problematic. It is problematic for following reasons: First, it ruled out the possibility of accusing the complicit by deciding the perpetrated time as the period of resignation. Second, it contains the possibility of turning the characteristic of misappropriation from offense provoking specific danger to abstract endangerment offenses.

In the case of Fictitious Declaration of Intention in Collusion, an formal agreement between the parties was made, which is why the record related to these contents being filled out at the register may not be seen as a false entry and not be considered as having committed a crime in false entry in officially authenticated original deed. However, what matter in false entry in officially authenticated original deed are not the actual facts but “facts on rights and duties”. Thus, it is right to judge false entry not only on the existence of the legal acts or the literal meaning of the authentic deed they caused but also on the legal effectiveness. Therefore, making government official to fill out an authentic deed by affecting as if the fictitious declaration of Intention in Collusion is an effective legal action, which is not, can not be but called an false entry, regardless of existence of appearance. Admitting private autonomy doesn’t mean allowing declaring ineffective legal action as if it had legal force and recoring fake facts on the authentic deed.

This is a treatise on the legality of the practice of attaching the crime counts exhibit as the part and parcel of the indictment or information (hereinafter referred to as ‘indictment’). Recently, the Korean Supreme Court decided the exhibit will not be considered as a part of the indictment. In Korea, it became conventional that the prosecution attached the exhibit of the crime counts stored in CD-ROM because the printout of the voluminous crime counts, such as those of the copyright infringement and the privacy infringement, bloats to the tune of several millions and tens of million pages. But this time, the Supreme Court decided that this kind of practice is not tenable anymore. But this decision of the Supreme Court seems at odds with the plain interpretation of the current criminal procedure law because ‘whatever is attached to the content of the indictment constitute a part of the whole indictment’ is the literal construction of the text of law. Moreover, it is strange to render it illegal when indictment attach the footnote that the crime count is so voluminous that the specifics will be appended in the CD-ROM format and actually appends the crime counts exhibit. It is not only illogical but also impractical to interpret that the appended crime exhibit is out of the scope of the indictment or is overstepping the bounds of the court hearing. It is well known that, in certain types of crime, such as the copyright infringement or the privacy infringement, crime counts exhibit extend to tens of thousand pages. If we stick to the traditional notion that all the crime counts should be presented in the physical document format, it will be not only impractical but also tremendous waste of efforts and expenses. If we take into account the recent development that the electronic document usage steadily replacing the paper document usage in civil and criminal justice system and peoples are sufficiently accustomed to the data storage devices, providing the crime counts exhibit in the form of electronic storage will be conducive to enhancing the interest of the defense if we take into account that it is time-saving and efforts-saving to analyze and archive the case record in the electronic platform. It is the right time to revise the criminal procedure law to avoid the controversy on the permissibility of the presenting the crime counts exhibit in the form of the electronic storage. It will be desirable to allow the prosecution to present the crime counts exhibit in the form of electronic storage unless it will curtail the right of the defendant and if it will meet the practical necessity of the court to authenticate the crime counts of the indictment.

The exclusionary rule is a principle restricted in order to draw appropriate conclusions according to the common sense of the community, and for this reason, other major countries recognize various exceptional theories of the exclusionary rule. In addition, article 308-2 of the Criminal Procedure Law stipulates the exclusion of automatic and mandatory evidence on evidence of illegal collection, which may lead to unjustified results depending on the case. Therefore, for the proper operation of article 308-2, it is necessary to interpret the meaning of ‘procedural violation’ as limited as possible rather than expanding it. For a limited interpretation, taking into consideration that the main reason for recognizing the exclusionary rule is to deter illegal investigations, it is only a violation of the due process that the investigating agency has clearly made its intention to violate the due process. From this point of view, the act of obtaining the evidence of the crimes that the customs officer discovered during the customs clearance inspection for international mail or international cargo and handing over the evidence to the investigating agency is considered to be legal. Because the nature of the customs inspection work performed by customs officer is an administrative investigation, and he has cooperated with the investigation of the investigating agency by taking the measures attached to the work. He is not considered to have conducted an investigation. In the end, it is important to look closely at whether the customs officer or investigative agency’s conduct of drug seizure directly violates the due process and it is intentionally malicious.

As the interception of communications infringe the close part of the privacy and the degree of the infringement is very serious, the law of protecting the secrecy of communications limits the group of crimes which can be the cause of the interception. As the result, the purpose of the limitation could not be achieved if the materials of evidence would not be restricted to use in investigation and prosecution only for the crimes within the limited group. We could admit the provision §12(1) of the law of protecting the secrecy of communications reasonable, which restrict the scope of the use of the evidence obtained by the interception of the communications. But the indentification materials of electronic communications includes only the names, the telephone numbers of the parties of the communication, the times fo the communication. It does not include the contents of the communications. The degree of the infringement could be said relatively minor and the law does not limit the scope of the crime which could be the cause of the request for the identification materials. Therefore, there would be no reason to limit the scope of the use of the evidence obtained by the request issued by the court. Nevertheless, the provision §13-5 of the law of protecting the secrecy of communications provides that the provision §12(1) which restrict the use of the evidence obtained by the interception apply correspondingly to the indentification materials of electronic communications. From the point of view of legislation, the provision §13-5 could be said inappropriate and should be eliminated in the future.

In the korean supreme court case in question, the fact needs to be reconsidered, that the prosecutor’s record containing the statement of witness that becomes the decisive evidence to prove the guilt was left out. Especially, even though the court judged that the chance of cross-examination was provided to the declarant of the record and there was no substantial violation of procedural rules, it could have assess the circumstantial guarantees of truthworthiness. Every issue will be absorbed into the principle of free evaluation of evidence, if the admissibility of the prosecutor’s record is not considered. It is so hard to completely agree with the argument of the dissenting opinion in which in case of inconsistent statements more weight of reliability must be placed on a court testimony. It is because it is clearly in violation of the principle of free evaluation of evidence to simply more rely on a court testimony in case of inconsistent statement. In light of the facts appearing in the case in question, it was possible to assess reliability of circumstances of statement separately from total consideration of reliability of evidences. Most of all, the witness’ statement before prosecutor should not have easily admitted when considering its’doubtful circumstances. Therefore, the courts, expecially the appellate court, should have closely examined the circumstances by having the persons related to the prosecutor’s interrogation take the stance. Because this process was left out, the requirement of the circumstantial guarantees of truthworthiness was not satisfied.

Forfeiture is a property punishment that deprives a crime-related property for the purpose of preventing the repetition of a crime or preventing it from profiting from the crime. In addition, Confiscation is a Judicial disposition to pay for the whole or part of the forfeitured object if it can not be forfeitured. Article 48 of the Korean Penal Code stipulates forfeiture and confiscation, and stipulates arbitrary. However, Article 134 of the Criminal Code (money to be paid to a bribe or bribe received by a criminal or a third person who knows the criminal in bribery), Article 206 of the Criminal Code (opium, opium, morphine), Article 357 (3) of the Penal Code (the property acquired by the criminal) and many special laws require forfeiture and confiscation as essential. In regard to such general forfeiture and confiscation, the Supreme Court refers to the forfeiture and confiscation in some special act as ‘disciplinary forfeiture and confiscation’ for the purpose of punishing without aiming at the deprivation of profits in light of the purpose of the legislation and the purpose of the legislation. and in the case of ‘disciplinary forfeiture and confiscation’, it acknowledges the collective responsibility of confiscation. In this article, I will review critically on what the Supreme Court has called ‘disciplinary confiscation’ for the forfeiture and confiscation of foreign exchange transaction act, and examine the problems of collective responsibility of confiscation.

Article 3(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents (hereinafter ‘Traffic Special Act’) provides that “A driver of a vehicle who commits a crime provided for in Article 268 of the Criminal Act by reason of a traffic accident shall be punished by imprisonment without prison labor for not more than five years or by a fine not exceeding 20 million won”. This regulates Non-real Status Crime, and ‘traffic’ stipulated herein is interpreted as objective circumstances of conduct. Additionally, driver stipulated in the Traffic Special Act seems to be defined as ‘a person driving or who has driven.’ This stems from legislator’s preference for compressed expression in terms of legislative technical efficiency. It is understood to be the result of preference for ’driver’, which is a compressed expression, rather than the descriptive phrase such as “anyone who is under the circumstances of operating a vehicle or driving” (Article 3(1) of the Traffic Special Act, Article 151 of the Road Traffic Act is identical) or “anyone who is driving or have driven” (Article 3(1) & 4(1) of the Traffic Special Act). The background of the subject judgment corresponds to [Case 2] where a non-driver (different occupation), who is a person lacking status, collaborates with an ‘occupational’ driver, who is a person with status. In this case non-driver, who lacks the status as an ‘occupational’ driver, has a status for a different occupation, and consequently shall be punished according to the statutory penalty for Co-principals of Traffic Special Act along with the person with status as ‘occupational’ driver (Article 33 of the Criminal Act). The reason is that the person lacking status has its own unique occupational negligence derived from the different occupation apart from the occupational driver, being guilty as Co-Principals of Bodily Injury by Negligence of the Criminal Act - Article 3 of the Traffic Special Act supercede Article 268 of the Criminal Act based on the existence of special relation. As regards to the contravention of Article 3(1) of the Traffic Special Act, where ‘traffic’ situation, which is the condition of punishment, and 12 exception clauses, which are the conditions of prosecution, exist only in respect of occupational driver, the person lacking such status also is inevitably guilty for Co-Principals of Traffic Special Act. As an inevitable outcome, Article 3(2) of the Traffic Special Act, which is a special case of non-prosecution against the clearly expressed intention of the victim, also applies to the person lacking such status. However, since the Principle regarding the Indivisibility of Criminal Complaint does not apply to an offence which cannot be prosecuted against the clearly expressed intention of the victim, declaration of an injured party of his/her intention not to prosecute two or more Co-Principals does not take effect in respect to the other accomplices. Therefore, Article 4(1) of the Traffic Special Act, stipulating special cases of comprehensive insurance coverage, is interpreted to limit the scope of personal application to only ‘driver’ according to its literal reading. “Exceptions must be interpreted narrowly”(ingularia non sunt extendenda), which is a principle of limitation, must apply to the above. The subject judgment is evaluated to confirm the non-application of the special cases of insurance to non-driver, i.e. comprehensive insurance coverage not taking effect to non-driver. This point is at least considered to be in line with the established precedent that the principle of Subjective Indivisibility of Criminal Complaint shall not apply mutatis mutandis to offence which cannot be prosecuted against the clearly expressed intention of the victim. Nonetheless, it is extremely regrettable that the subject judgment only declares such purport without any detailed grounds.

In the year of 2017, 110 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, above 5 cases and other several cases are reviewed which seem to be comparatively important to the author. All the reviews are constituted as follows: 1. The Fact of the Case, 2. The Summary of Decision and 3. The Note. The contents of this paper is as follows; Ⅰ. Introduction Ⅱ. The Cases of the Grand Panel of the Korean Supreme Court In this chapter, 5 cases of the Grand Panel are reviewed. The subjects of the cases are mainly related with the principle of ‘nulla poena sine lege’. For example, the prohibition of analogical interpretation and the prohibition of wide delegation of the punishment to the lower regulation are commented. Ⅲ. The Cases relating to General Part of Criminal Law In this chapter, 3 cases are reviewed. The subjects of the cases are the temporal effect of the punishment, Verbotsirrtum and the number concerned with the crime of forcible obstruction of business. Ⅳ. The Cases relating to Special Part of Criminal Law 6 Cases are reviewed in this Chapter. The subjects are the calculation of punishment, the concept of injury in sexual violence crimes and etc.