In the year of 2008, 404 criminal cases by the Korean Supreme Court are registered on the homepage of that court. 4 cases are decided by the counsel of all judge members, one of which was on the criminal procedure and the other 3 were on the criminal law. The cases which are reviewed in this paper is as follows; First, the cases by the counsel of all the judges of the supreme court. Among these are Supreme Court 2008. 6. 19. 2006 Do 4876. Supreme Court 2008. 4. 17. 2004 Do 4899, Supreme Court 2008. 4. 17. 2003 Do 758. Second, the cases relationg to the general principles of criminal law. Among theses are Supreme Court 2008. 3. 27. 2008 Do 89, Supreme Court 2008. 11. 27. 2008 Do 7311, Supreme Court 2008. 10. 23. 2005 Do 10101, Supreme Court 2008. 11. 13. 2008 Do 7143, Supreme Court 2008. 9. 11. 2006 Do 8376, Supreme Court 2008. 3. 27. 2007 Do 7874, Supreme Court 2008. 4. 11. 2007 Do 8373, Third, the cases relating to the individual crime provisions. Among these are Supreme Court 2008. 7. 10. 2008 Do 2422, Supreme Court 2008. 3. 27. 2008 Do 917, Supreme Court 2008. 10. 23. 2008 Do 6080, Supreme Court 2008. 4. 24. 2006 Do 9089, Supreme Court 2008. 12. 24. 2008 Do 9169, Supreme Court 2008. 10. 23. 2008 Do 5200, Supreme Court 2008. 3. 13. 2006 Do 3558.

Article 9(1) of the Punishment of Tax Evaders Act (“PTEA”) stipulates that any person who evades tax obligations through fraud of other wrongful conduct shall be punished under the PTEA. So far, most of discussions surrounding Article 9(1) of the PTEA were focused on the meaning of “fraud” or “wrongful conduct.” In the case at hand, the focus was on the meaning of “tax evasion.” There has been much controversy and debate over this issue. The debate centers on the issue of whether a person who has properly reported the tax base and therefore cannot be said to have interfered with the tax authorities’ ability to impose and determine tax liabilities, but instead has hindered the collection of the tax, can be punished under the PTEA. In the recent Supreme Court Decision 2005 Do 9546 delivered February 15, 2007 the court ruled that even if there was no interference of the imposition or determination of tax, if there was interference of collection of tax, then the conduct should also be punished. The author of this paper fully agrees with the Supreme Court's decision for the following reasons: First, the legislative purpose of the PTEA is to secure the state’s tax revenues as well as realize the spirit of fairness and justice in tax collection. Moreover, although anyone can report tax returns properly, if that person deliberately attempts to avoid the collection of tax, that conduct cannot go unpunished. Tax returns, in the end, serve the purpose of facilitating tax collection. Second, on a practical level, hindrance of the imposition /determination of tax and the hindrance of collection are both unlawful behavior that bring on the same result, and therefore should be treated alike. In conclusion, the recent Supreme Court decision is significant in that it clarifies the interpretation of “tax evasion” as stipulated in Article 9(1) of the PTEA. More importantly, this interpretation is in accordance with the principle of the legal principle of Nullum crimen sine lege.

The defendant in this case withdrew 50,000 Won from a cash dispenser by using a cash card given by the card owner, who asked the defendant to withdraw 20,000 Won. The defendant gave 20,000 Won to the card owner, but took 30,000 Won for himself. The prosecutor accused the defendant of committing "fraud by using a computer" in Article 347-1 of the Penal Code, but the trial court held him not guilty in that the object of "fraud by using a computer" was limited to "property interest" different from "property." Appealing to the higher court, the prosecutor accused the defendant of committing "theft" in Article 329 of the Penal Code. However, the appeal court held him not guilty in that a cash dispenser was supposed to give cash to a cash card user if provided with a correct password; the bank, the occupier of the cash dispenser, could not be considered to have an intention of giving cash to a card user after reviewing the scope of the entrust between the card owner and the card user; therefore, the defendant did not withdraw cash against the intention of the bank. After reviewing the case, the Supreme Court held the defendant committed "fraud by using a computer" in Article 347-1 of the Penal Code, providing when the defendant withdrew 50,000 Won, he did not commit "theft" while he acquired "property interest," which is 20,000 Won. This article reviews legal dogmatic issues of this case. First, it compares this new decision by the Supreme Court with its previous decisions where it held the defendant committed "theft" in that he withdrew cash from a cash dispenser by using a cash card without any entrust from the card owner. Second, it analyzes two important aspects of the case: whether the defendant in this case withdrew cash against the intention of the bank or not; why 20,000 Won in this case should be interpreted as "property interest," not "property."

선박의 대형화 및 해상사업의 기업화 등에 따라 해상운송에 있어 화물의 하역, 보관 등의 전문적인 부분을 담당하고 있는 항만하역업자, 항만터미널운영자, 창고업자 등 독립계약자의 역할은 점점 증대되어 가고 있는 추세이다. 하지만 국제해상운송은 해상운송인과 화주를 중심으로 체결한 운송계약을 중심으로 이루어져 왔으므로, 영국 보통법상의 직접계약관계의 원칙에 의해 계약당사자가 아닌 자는 계약상의 이익을 원용할 수 없다는 입장을 유지하여 왔다. 이에 대해 이를 완화하고자 하는 다양한 방안이 적용되고 있으며, '히말라야약관'도 그러한 방안중의 하나이다. 본 논문은 최근 대법원판결을 통해 우리나라 법원의 히말라야약관의 유효성 인정에 대한 내용을 재검토하고 독립계약자, 특히 항만터미널운영자의 운송계약상 제3자의 권리인정에 관한 문제에 대한 각국의 경향에 대해 살펴본다.

The Supreme court admits the real evidence in spite of the unlawfulness during the process of acquiring it. The reason of the theory is that truth-worthiness of the real evidence has not been changed by the fault of the investigation in gathering evidence. Considering the want of Destruction of Justice statutes, the Supreme court strikes the balance between the public interest and private protection by admitting the real evidence on all occasions. The reformed Criminal procedure law is going to introduce the exclusionary rule. The §302-2 stipulates that "The evidence which is not gathered by lawful process should be excluded." Comparing with other developed countries exclusionary rule, it is too broad. For instance, PACE act §78 (1) in England is “In any proceeding the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it." In Canada, the constitution §24 ② provides that “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice in to disrepute." Even in the U.S., there are lots of exceptions to the exclusionary rule. Good faith theory, harmless error rule, the standing, restrictive application in Miranda rule violation. collateral use are the examples. The German's Beweisverwertungsverbote is the theory concerned about balancing the interest to protect the privacy. Thus basically it doesn't matter the manner of gathering the evidence. So it stats from quite different angle. When it comes to our exclusionary rule, we must be prudent when we apply the rules to the real case. We don't have to exclude the real evidence solely because it is not obtained according to the process of law. We should take into account the motive of the police, the seriousness of the case, the deterrence effects, the influence on the administration of justice, the value of the evidence. If the evidence is procured by private party, it should not be excluded. The criminal justice system don't have to depend on third party's action. Also there is the possibility that the third party or dependant will abuse the rule. There will be no remarkable deterrent effect, even if we remove the evidence on account of private party's illegal behavior.

The Korean Constitution and the Korean Criminal Procedure Code provide the emergency arrest exception for the warrant requirements. The investigative authorities can arrest suspects without an arrest warrant issued by a judge if there is "probable cause" to believe that a suspect has committed a felony and if there is concern to believe that the suspect may destroy evidence or attempt to escape. In the case of an emergency arrest, the Criminal Procedure Code does not require that an arrest warrant be filed within 48 hours but it only requires that a detention be filed, therefore, the warrantless arrest without any judicial control is legitimatized for at least 48 hours. As a result, the investigative authorities tend not to pursue the arrest on the warrant, but depend on the emergency arrest because it is free of any warrant requirement and gives them much time to interrogate the suspect without any judicial control. In addition, the investigative authorities have developed two kinds of convenient systems to avoid the warrant requirement. The first is "voluntary accompaniment," which is the Korean version of the U.S. Terry stop system. The second is "investigation of relevant persons" who voluntarily appear before the authorities following the authorities' request to come to the police station although they are not a suspect. Since these two systems are not officially a compulsory measure, the constitutional restrictions for an arrest warrant do not attach. In particular, the authorities often proceed these two systems first, try to acquire informations from citizens, then arrest citizens if they are not cooperative. This Article is to review two Korean Supreme Court decisions to deter these two investigative authorities' tactics. The Decisions of July, 6, 2006 provides strict requirements of permissible "emergency arrest" of the "relevant persons" who voluntarily appear before the authorities. The Decisions of September, 8, 2006 stablished that if the individuals who are asked to voluntarily accompany the officer to the police station are not given the "freedom to leave" at any time, as a practical matter, the "voluntary accompaniment" is an illegal arrest.

해상교통법에서는 다른 선박을 피하여야 하는 의무를 가지는 서로 다른 두가지 그룹의 선박이 있다. 하나는 다른 선박의 진로를 피하여야 할 선박이고, 다른 하나는 통항을 방해하지 아니할 선박이다. 통항불방해의 무선박의 개념은 1972년 국제해상충돌방지규칙의 1987년 개정에서 제8조 (f)항을 채택함으로써 분명하여졌다. 그러나, 한국정부는 이러한 규정을 한국의 국내법에 현재까지 수용하지 아니하였다. 그리하여 통항불방해의무선박의 정의와 적용에 대하여는 학계에서조차도 크게 논의되지 않고 있다. 최근 대법원은 통항불방해의무선박이 관련된 충돌사건에 대한 판결을 내렸다. 필자는 외국 학자들의 논문과 국제해사기구의 문서를 참조하면서, 통항불방해의무선박에 대한 자신의 견해를 밝히면서 대법원의 판결을 비판하고 있다.

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