형법 제3조의 문제점과 해결방안

Article 3 of the Criminal Act provides that, "This Act shall apply to all Korean nationals who commit crimes outside the territory of the Republic of Korea," even though their crimes are not applied to the Criminal Act of the countries. However,the attitude of the current Act is inappropriate because policies and institutions of each country havebeen changed similarly through increasing co-relationships due to globalization. Also, the attitude of extending the territory to a host country is hard to defend against criticisms that protecting nationalism does not follow generation changes, though it is enough to keep protective values if each country has them traditionally. In addition, its provision is inappropriate to the constitutional ideology and rule under which a country should provide maximum fundamental rights for citizens while limiting them to the minimum if necessary. Therefore, Article 3 of the Criminal Act, "Crimes by Koreans outside Korea,"should be revised because of the absolute personal principle. Direction for revision consists of the legislative method of the dual criminality punishment and positive system. By means of accepting the positive system, it is reasonablethat specific acts which are kept should be regulated by law somewhere outside of a host country. It is natural only if there is a social consensus on what kinds of crimes are enacted and legislated. As a result, the applicable scope of the Article 3 of the Criminal Act should be decreased. It is more rational that the solution is an analogical application with respect to the exceptive clause of Article 6 of the Criminal Act. Article 6 of the Criminal Act, "Foreign Crimes against Republic of Korea and Korean National outside Korea," provides that, "This Act shall apply to aliens who commit crimes,other than those specified in the preceding Article, against the Republic of Korea or her nationals outside the territory ofthe Republic of Korea provided.That this shall not apply in case where such acts under Act in effect at the time of the act do not constitute a crime, or the prosecution thereof or the execution of the punishment thereof or is remitted." Thus, it does not violate the principle of legality (nulla poena sine lege), if the exceptive clause of Article 6 of the Criminal Act is applied analogically thereof and gives actors a beneficial status, the applicable direction allows the decrease of unconstitutionality of the absolute personal principle which is related to "Crimes by Koreans outside Korea" in case that such acts do not constitute a crime, or the prosecution, or the execution of the punishment under the Act of the territory. Under this method, it is reasonable to apply to Article 3 of the Criminal Act toward providing actors with a beneficial status in the circumstance when it is not reformed.