행정형법과 과실범의 처벌- 2010. 2. 11. 2009도9807 판례를 계기로

The Article 14 of Korean Criminal Act prescribes that “act performed through ignorance of the facts which comprise of the constituents of a crime by neglect of normal attention, shall be punishable only when prescribed so by Act.” However, the decision of Korean Supreme Court (2010. 2. 11. 2009Do9807), which states that even the regulation on the administrative control can only punish the act of negligence when there is an enacted law or a clear intention to punish it, indirectly acknowledges that the act of negligence can be punished when the interpretation clearly indicates the intention to punish the act of negligence even when it is not prescribed so by Act. This paper critically examines whether the aforementioned ruling of Korean Supreme Court on the act of negligence is valid. First, the decisions of Korean Supreme Court made in the past regarding the act of negligence are reviewed in a chronological manner. Then, the history of codification of the Article 14 of Korean Criminal Act is revisited. This paper confirms that, within in the context of reception history, the Article 14 of Korean Criminal Act shares the same purpose of codification as the Article 15 of German Criminal Act that is purported to address the practical concerns regarding the question of “does the interpretation of regulation reveal a clear intention to punish the act of negligence?” The author of this paper argues that the administrative criminal law should only be applicable when there is an enacted law that states that the act of negligence should be punished. The author also argues that the decision of court should follow the text of the Article 14 of Korean Criminal Act more strictly.