In the year of 2010, 286 criminal cases by the Korean Supreme Court are registered on the homepage of that court. Four cases are decided by the counsel of all judge members, two cases of which were on the crimial procedure and the other two cases were on the criminal law. In this paper are reviewed some cases by the supreme court which seem to have theoretical or practical problems. The contents of this paper is as follows;Ⅰ. IntroductionⅡ. The Cases relating to General Provisions of Criminal Law In this chapter, following cases are reviewed. The Review is constituted as follows: (1) The fact of case, (2) The main point of case, (3) The comment on the case. But in many reviews the fact is omitted, because the main point of case concludes the fact of the case. 1. Supreme Court 2010. 9. 30. 2008Do4762 2. Supreme Court 2010. 10. 28. 2008Do8606 3. Supreme Court 2010. 12. 23. 2010Do7412 4. Supreme Court 2010. 9. 9. 2010Do6924 5. Supreme Court 2010. 7. 8. 2010Do931 6. Supreme Court 2010. 9. 30. 2010Do6403 Ⅲ. The Cases relating to Individual Provisions of Criminal LawIn this chapter, following cases are reviewed. Every review is constituted as follows: (1) The fact of case, (2) The main point of case, (3) The note on case. But in many reviews the fact is omitted, because the main point of case concludes the fact of the case. 1. Supreme Court 2010. 7. 15. 2010Do1017 2. Supreme Court 2010. 5. 27. 2009Do9008 3. Supreme Court 2010. 4. 29. 2009Do14554 4. Supreme Court 2010. 9. 30. 2010Do7405 5. Supreme Court 2010. 12. 9. 2010Do9630 6. Supreme Court 2010. 8. 19. 2010Do6280 7. Supreme Court 2010. 10. 14. 2010Do387 8. Supreme Court 2010. 5. 13. 2010Do1040 9. Supreme Court 2010. 10. 14. 2010Do8591 10. Supreme Court 2010. 9. 30. 2010Do7525

In the year of 2009, 346 criminal cases by the Korean Supreme Court are registered on the homepage of that court. 6 cases are decided by the counsel of all judge members, 3 cases of which were on the crimial procedure and the other 3 cases were on the criminal law. In this paper are reviewed some cases by the supreme court and 1 case by the constitutional court which seem to have theoretical or practical problems. The contents of this paper is as follows; Ⅰ. Introduction Ⅱ. The Cases relating to General Provisions of Criminal Law In this chapter, following cases are reviewed. Every Review is constituted as follows : (1)The fact of case, (2) The main point of case, (3) The note on case. 1. Supreme Court 2009. 9. 24. 2009도5302 2. Supreme Court 2009. 6. 11. 2008도11784 3. Supreme Court 2009. 6. 25. 2009도3505 4. Constitutional Court 2009. 6. 25. 2007헌바25 Ⅲ. The Cases relating to Individual Provisions of Criminal Law In this chapter, following cases are reviewed. Every review is constituted as follows : (1)The fact of case, (2) The main point of case, (3) The note on case. 1. Supreme Court 2009. 5. 14. 2009도1947, 2009전도5 2. Supreme Court 2009. 3. 26. 2007도3520 3. Supreme Court 2009. 9. 10. 2009도3580 4. Supreme Court 2009. 10. 29. 2009도5704 5. Supreme Court 2009. 8. 20. 2009도3452 6. Supreme Court 2009. 4. 9. 2009도128 7. Supreme Court 2009. 6. 25. 2008도3792 8. Supreme Court 2009. 5. 14. 2007도2168 9. Supreme Court 2009. 10. 15. 2009도7421 10. Supreme Court 2009. 2. 26. 2006도3119 11. Supreme Court 2009. 7. 23. 2009도3924

As crimes generating huge sum of benefit such as organized crimes, narcotic crimes, and pornography related crimes have been increasing, criminal special act intends to make a redemption for the benefits from criminal acts by the provisions of forfeit or additional collection. Generally, forfeit based on criminal law is characterized as security measure in that it prevents from keeping unlawful benefits by depriving criminals of profit from the wrongful acts. Therefore, when suspended sentence is added to the primary sentence, suspended sentence can be imposed to the additional collection. However, it is not available if it is not added to the primary sentence. Independent appeal on the additional collection is also impossible if there is no appeal for the final judgement. On the contrary, the additional collection from Act on the Control of Narcotics, etc, Customs Act, and Act on aggravated punishment, etc. of specific economic crimes is characterized as a punishment based on the fact of crime. However, in the targeted case, it is questionable that special laws consider the additional collection as punishment. Punitive additional collection is unfavorable to the offender because it can be imposed even though there is no actual benefit from the wrongful acts. Moreover, it is not reasonable to impose not only jointed additional collection based on civil law but also punishment. It is contradictory to the responsibility principle that criminal law calls for and the way of weighing of an offense. Additional collection to a person who simply transport or keep some goods, not to the person who obtain the goods, is not appropriate to the responsibility principle of criminal law. In this respect, the scope of the additional collection needs to be narrowed and it seems to be more reasonable to use the concept of deprivation of benefits from criminal acts.

The purpose of this paper is to discuss the criminal responsibility of issuing of cheap convertible bonds using the case of Samsung Everland which Samsung Everland issued convertible bonds for dirt cheap in a scheme to have chairman Lee Kun-hee’s son inherit control of the Samsung group. According to the final decision of Supreme Court, Korea, the case was received the verdict of not guilty. As following the Supreme Court ruling, the interpretation restricted the concept of an act in violation of one's duty to a certain behavior having a potential risk of damage. However, the final decision has some doubtable factors to question its adequateness. Defining the duty violation using the factor of potential damage ignored the other factors such as justness(legitimacy) of purpose, due process, rationality of means. Additionally, it seems that the logical background of the final decision disbanded all factors equivalently without any weights on the certain behavior. That is, as excluding the factor of loss, it is clear that the accused issued the unfair convertible bond with wrongful purpose against due process. Therefore, it is clear to assert a possibility of breach of duty. On this paper I am going to go through the overall a jump in the logic for the decision of Supreme Court on criminal responsibility of issuing of cheap convertible bonds of Samsung Everland, and discuss the need of reconsideration of the case.

In case of injury during a sports game, to punish the offender without exception might lead to withering of sports activities, whereas to get the offender exempted on the mere ground that injury occurred in the course of a sports game might cause plummeting of either legal stability or law-abiding spirit. So, it is vital to draw a bright line between criminal liability and moral obligation with regard to injury during a sports game. Scholars suggest the theory of victim's consent, the theory of tolerated danger, the theory of social reasonableness or the theory of non-legal issue as sources of justification to limit criminal liability. Each theory has its own merits and demerits. In order to punish the offender who inflicted injury by negligence during a sports game, general requirements of 'infliction of injury by negligence' occurrence of injury, ― causal relationship between offender's act and injury, breach of objective duty of care, etc.― should be met. Objective duty of care can be derived from statutes, past practices, social norm, logic, empirical rule or court decisions. In a sports game however, rules of the game may be the most important source of objective duty of care. As rules of the game enumerate matters that require attention in the entire course of a sports game, player's act against these rules can be treated breach of objective duty of care. It is excessive to deem all of the acts against rules of the game, including minor ones, breach of objective duty of care in light of the way a sports game is played as well as autonomy enjoyed in the sports field. Unless injury resulted from the act that had gone against rules of the game beyond reasonable expectation, the offender should not be found to breach objective duty of care. Rules of the game differ from type to type. In so-called type of rivalry sports games, rules of the game, while allowing the player or the team to make physical attack on the opponent to some extent, focus on diminishing or eliminating the possibility of injury. In so-called type of individual sports games, rules of the game prohibit dangerous act and call the attention of the players to avoid injury. To sum up, breach of rules may be treated more harshly and less flexibly in type of individual sports games than in type of rivalry sports games. The judgment under review in this paper has something to do with golf game, which belongs to type of individual sports games. The judgment thinks highly of rules of the game as source of objective duty of care. It also denies criminal liability in case of injury resulting from minor breach of rules of the game, which would reasonably be expected. On the face of it, the judgment seems to adopt the theory of social reasonableness. However, considering the courts usually dub social rule social reasonableness, the view taken by the judgment might be different from the theory of social reasonableness advocated by the scholars. The theory of social reasonableness relates to negation of applicability of criminal statute, whereas the view taken by the judgment might relate to negation of illegality. In such type of individual sports games as golf, the players enjoy game without physical contact with other participants, expecting reciprocal care to avoid unwanted injury. So it is somewhat improper to adopt the theory of victim's consent as source of justification to limit criminal liability in golf game. The judgment, in similar context, seems to have dismissed defense of 'victim's consent' raised by the accused. Even in case that the offender is held liable for infliction of injury by negligence with regard to injury during a sports game, the possibility to get relief is still open. If the offender reaches an agreement with the victim, he or she is able to avoid criminal punishment according to Art. 266 Para. 2 of the Penal Code.

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.

Recently in Korea it is passionately disputed regarding criminal investigation system whether Article 139 of Korean Criminal Code is constitutional or not. Article 139 of Korean Criminal Code says as follows : Article 139(Obstruction of Official Duties for Vindication of Human Rights) A person who, performing police duties or assisting in such duties, interferes with the execution of duties of a public prosecutor concerning the vindication of human rights or who does not follow his instructions concerning the vindication of human rights, shall be punished by imprisonment for not more than five years or suspension of qualifications for not more than ten years. Korean Constitutional Court ruled the provisions of the latter part of the preceding article is not against the Constitution. One of judges, Justice Gonghyun Lee, argued that this clause is unconstitutional on the grounds of “void for vagueness." In this review firstly is examined how this article was legislated in 1953 and what problem and criticism has been raised. Then is reviewed whether the provisions of the latter part of the preceding article is unconstitutional on the grounds of “void for vagueness." The Article 12, paragraph (1) of the Korean Constitution prohibited punishing “unless it is so authorized by an Act or without due process of law." This clause requires that criminal statutes should be drafted in a clear and understandable fashion. In this review it is concluded that the provisions of the latter part of Article 139 fails to meet this clarity standard and is unconstitutional on the grounds of “void for vagueness." Lastly, is discussed whether the provisions of the latter part of Article 139 is unconstitutional on the grounds of “void for unnecessary." The Article 37, paragraph (1) of the Korean Constitution required criminal statutes to restrict freedoms and rights of citizens ‘only when necessary.' A punishment should not be more severe than is necessary when punishing someone for a crime. In this review it is concluded that the provisions of the latter part of Article 139 fails to meet this proportionality standard and is unconstitutional on the grounds of “void for unnecessary."

Criminal Act Article 37 defines the concurrent crimes. The preceding paragraph of Article 37 states coincidence concurrent crimes which is defined as ‘several crimes for which judgement has not become final.' The post concurrent crimes is defined as ‘A crime for which judgement to punish has become final and the crimes committed before the said final judgement' in the latter part of Article 37. The reason for regulating the post concurrent crimes(the latter part of the Article 37, Article 39) besides coincidence concurrent crimes(the preceding part of the Article 37, Article 38) is that the crime for which judgement to punish has become final and the crimes committed before the said final judgement is sentenced as coincident concurrent crime by definition. Therefore, the event which is not noticed to the court cannot be the reason of giving advantage or (especially) disadvantage to the criminal suspect. Amended by Act No. 7623, July, 29, 2005, Criminal Act Article 39 (1) is stated as follows.' In the event there is a crime which has not been adjudicated among the concurrent crime, a sentence shall be imposed on the said crime taking account of equity with the case where the said crime is adjudicated concurrently with a crime which has been finally adjudicated. In this case the said punishment may be mitigated or exempted.' According to the amendment, it is possible to reduce the disadvantage when the criminal suspect is sentenced as post concurrent crime than sentenced as coincidence concurrent crime. The current decision(2006Do8376) represents the first meaningful Supreme Court decision of amended Article 39 (1). The decision includes ambiguous statement such as “deciding coincidentally and considering the equity" and the court may use the discretion in regard to reasonable determination of punishment by applying the previous statement. Therefore, the decision is not subject to restriction of severe application of Article 38 but also the mitigation or the exemption of punishment is considered as the court's genuine discretion. If the criminal suspect who commits a crime for which judgement to punishment has become final(b) and the crimes committed before the said final judgement(a) sentenced as coincident concurrent crime, the decision is not rational and it cannot meet the liability of the regulation. The current article critically examines the interpretation of Supreme Court statement of “deciding coincidentally and considering the equity" and the further conclusion.

The merit of interactive flow of information, convenient popularization of information and massive information share through the internet is a quick and simple obtainment of the required information for everyone and anyone. Due to such characteristic, the probability of copyright violation through internet is increasing. However who is to take the blame as civil liability or criminal responsibility? Recently, The Supreme Court has judged civil procedures and Criminal cases about infringement of Copyright. Especially regarding Soribada service, whether the users who download the share files on P2P basis and the service providers are subject to the liability of copyright infringement. Soribada received a verdict of guilty as to aid and abet violation of the Copyright Act. The Criminal points at issue of Soribada service occasion are as follows. First, whether the service users have infringed the right to reproduce or distribution rights of the record producers. Second, who commits a crime have to cherish intention or at least wilful negligence. And intention of reproducing or distributing violated Copyright Act, includes who is the principal offender. but Soribada program providers don't have intention of the principal offender directly or indirectly. Third, crime commited by ommission demands commission duty and responsible persons are supposed to undertake their obligation. If not, ommission is criminal 'ACT'. but is Soribada program provider legally responsible persons? or What is his duty essentially? Thus, this paper reviews the criminal issues on the copyright violation of the P2P program provider, focusing Sribada occasion. In conclusion, The Supreme Court a judicial precedent 2005do872 regards it as appropriate to be given a decision of not guilty.

In 2007, 511 criminal cases of 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 crimial procedure and the others were on the criminal law. In this paper are reviewed several cases including two criminal cases by the supreme court counsel of all judge memberst and 1 case by the consititutional court. I. Cases by the counsel of all the judges of the supreme court. 1. Supreme Court 2007. 9. 28. 2007 Do 606. These cases are on the distinction of the completion from the attempt of the crime of threat 2. Supreme Court 2004. 4. 19. 2005 Do 7288. This case is on the amount of profit by property crimes. 3. Constitutional Court 2007. 11. 29. 2005 Heonga 10 This case is on the unconstitionality of the provision that punishes the employer because of the crime by the employee. II. Individual Cases In this paper, following cases are reviewed. 1. Supreme Court 2007. 8. 23. 2007 Do 4818. 2. Supreme Court 2007. 2. 8. Do 2006도7900 3. Supreme Court 2007. 12. 14. Do 2005도872 4. Supreme Court 2007. 2. 8. Do 2006도6196 5. Supreme Court 2007. 6. 29. Do 2005도3832 6. Supreme Court 2007. 1. 25. Do 2006도5979 7. Supreme Court 2007. 3. 15. Do 2006도9453 8. Supreme Court 2007. 5. 10. Do 2007도1375 9. Supreme Court 2007. 9. 20. Do 2007도5507 10. Supreme Court 2007. 3. 15. Do 2006도2704 11. Supreme Court 2007. 10. 12. Do 2005도7112 12. Supreme Court 2007. 3. 29. 2006 Do 9182

Till now we have inquired into problems about application of the Criminal Code Article 310 centering around the Supreme Court's case. To apply Article 310 to the case, the action of article 307① is to be true and a thing about only public interest. As the truth is a objective structure factor of article 307①, it is an acknowledge object of Intent, therefore if one believe non-true factor as true factor, he falls into an error of factor, So his action conforms not to article 307② but rticle 307①. And the aim of public interest is an subjective factor for justification of article 310, but the aim of maligning an innocent person is an subjective factor for justification of article 309. So the former is factor for decision of unlawfulness, the latter is a factor for decision of structure. After all without the former, the unlawfulness of the action is still recognized, without the latter the structure of the action is cut.

In our society, in which a great variety of risk business transaction are carried, the parties concerned require often untypical mortgage to the contraries to make such transaction easy and effective. According to this requirement, the contraries, members of corporation, should offer assets of their companies as an mortgage arbitrarily. Members, who dare to carry out risk transaction for excessively profitable business, are very likely to commit breach of corporational trust. Accordingly it comes to be very important issue, to what extent criminal law should intervene in attitude of counter partner involved in those cases. If members conducting affairs of business commit jointly breach of trust, they can be punished as accomplice each all, but it is disputable, whether counter partner without status as members can be punished as an accomplice under the same condition, namely the Act Control('Tatherrschaft' in german). Under the precondition of answering this question affirmatively, it becomes an issue to put meaning of the Act Control into shape. Related to what the Act Control means, its constituents, mainly division of execution as an objective condition, mutual connection of intention, should be analysed on after another. If counter partner without status as members can not be punished as accomplice because of lacking the necessary condition, another problem becomes to be posed, whether his conduct leave no room for being punished especially as assistance. Because he assists the principal, member of company, in a way of daily deal activity('alltaegliches Verhalten' in german), he can be probably not punished as assistance of trust breach. The decision concerned(supreme court 2005.10.8. adjudged 2005do4915 sentence) declared 'not guilty' because of lack of illegality based on social adequateness. Despite of proper conclusion, I doubt whether the restriction of the extent of assistance should be made at the second level of illegality, because the first level of elements of constitung the case("Tatbestandsmaessigkeit" in german) can restrict the extent of assistance, by means of normative restriction or objective imputation.

Criminal Procedure Act(CP ACT) Article 266 regulates ‘When a public trial has been instituted, the court shall serve the defendant or his defence counsel with a copy of the indictment without delay---'. According to the Act Article 63 (1), when the dwelling, office or present residence of the defendant is unknown, the service may be made by public notice. Service by public notice may be made only when a court so orders in accordance with the Supreme Court Regulations and service by public notice shall be made by the court administrative officer or clerk preserving the document to be served and by his putting a summary thereof on the court bulletin board to show it to the public{CP ACT Article 64 (1), (2)}. The previous provisions tell us that in case of service by public notice, the defendant has the difficulty to be informed on the schedule on his trial in modern times, and therefore we reach the conclusion that the trial cannot be opened because when the defendant does not appear on the day fixed for public trial, the court shall not sit without special provisions(The Act Article 276). To solve the problem mentioned above, ACT ON SPECIAL CASES CONCERNING EXPEDITION, ETC. OF LEGAL PROCEEDINGS(ACT ON SC) has been made. When it is impossible to confirm the whereabouts of an accused, in the procedures at the court of first instance, up to an elapse of 6-month from the time when the report on impossibility of service on the accused has been received, the judgment may be rendered without hearing a statement of the accused under the conditions as determined by the Supreme Court Regualtions(ACT ON SC Article 23). The Supreme Court has decided that the court need to make every effort to find out the whereabouts of an defendant to satisfy the requirements asked by ACT ON SC Article 23. If the court did not make every effort to do, the procedures of the court would be illgal and the decision of the court should be reversed. If so, the defendant may apply for recovery of his right to appeal{When a person entitled to make an appeal --- has been prevented, by a cause not imputable to himself or his representative, from lodging an appeal within the period for making an appeal, he may apply for recovery of his right to appeal(CP ACT Article 345)}. It remains to be seen that how much effort has to be made by lower courts.