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Overseas Application Coverage of Administrative Criminal Law - Supreme Court Case 2014do10051 -

  • DONG-A LAW REVIEW
  • 2019, (82), pp.505-536
  • DOI : 10.31839/DALR.2019.02.82.505
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law
  • Received : January 31, 2019
  • Accepted : February 28, 2019
  • Published : February 28, 2019

Kil Mo Koo 1

1충남대학교

Accredited

ABSTRACT

The ruling of the case 2014do10051 is a judgment on whether Korean people will be punished if they violate Korean administrative criminal law in foreign countries. It is a case that the Korean people carried out massage business in Japan without the massage qualification under Korean Medical Law. The Court of Appeals ruled that the accused should be punished. However, the Supreme Court reversed the ruling of the original trial on the grounds that the administrative criminal law of the Medical Law is applied only to the domestic cases. This judgment is meaningful in that it does not say that it should be punished with the application of the Criminal law Article 3. The Criminal law Article 3 stipulates that 'This Act shall apply to nationals who committed a crime outside the territory of the Republic of Korea'. This provision should be interpreted as the unconditionally active personal principle. This is so unusual provision that similar provisions can not be found in other countries' criminal laws. Therefore, methods of interpretation of this provision should be studied to minimize the problems of this Regulation. Article 8 is a regulation that limits the application of general provisions of the Criminal law to administrative criminal laws. Therefore Article 8 may be construed as a provision limiting the application of Article 3 to administrative criminal laws. Article 8 provides that Article 3 may not apply if there is a special regulation in the corresponding Act. And since the application of Article 8 paragraph acts as a reduction of the scope of the punishment, it is not a violation of the criminal justice system to interpret a special regulation as a implicit provision. The purpose of legislation shall be considered in the interpretation of implicit regulations. In this case, Article 8 can be used as a provision that restrict the administrative criminal provision of the Medical Law from being applied to the crimes committed overseas by Koreans. I agree with the conclusion of this judgment. However, This issue should be solved by applying Article 8 of the Criminal law. This article regulate the scope of the application of the general criminal law principle to the administrative criminal law. In analyzing and criticizing the case, I reviewed the resolution method of international criminal case and the scope of the application of the general criminal law principle. Due to the globalization, the number of international criminal cases in which Korean commit crimes in foreign countries may increase in the future. I think it is necessary to study the solution of these cases.

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