국제형사법 관련 우리나라의 주요판례 검토: 해상강도사건판결과 범죄인인도사건판결을 중심으로

This article reviewed the Korean Courts’ judicial decisions with respect to international criminal law: decision on Somali armed robbers at sea in 2011; decision on extradition of Nguyen Huu Chanh in 2006; decision on extradition of Liu Qiang in 2013. In general, these decisions of Korean Courts seem to be consistent with principles and practices of international criminal law. In Somali armed robbery case, Korean Courts exercised their criminal jurisdictions on the basis of passive nationality principle rather than universality principle since Korean Criminal Law does not provide for the universal jurisdiction over armed robbers, but provide for jurisdiction over them under passive nationality principle. But, in this case, the Korean Supreme Court said arresting pirates and armed robbers at sea are subject to international human rights law and human rights provisions under Korean domestic law. In Nguyen Huu Chanh and Liu Qiang, Korean High Courts said extradition cannot be permitted when the relevant crime is a relative political crime which is more political crime rather than ordinary crime because of its gravity and character. Further, Korean Courts adopted “predominance theory” when they decide if a crime is a relative political crime or ordinary crime by reviewing totality of circumstances which are attributable to the perpetrator and the proportionality between the seriousness of crime and the purpose of committing the crime. Predominance theory is a widely accepted theory by countries and the most developed theory with respect to “principle of non-extradition of political offenders”.