형법상 외환의 죄에 관한 연혁적 고찰

Korean Criminal Act (hereinafter “KCA”) was legislated in 1953, right after the time of great tumult in Korean history, in which period Korea went through the Liberation in 1945 and the Korean War in 1950-1953. Due to the urgent need of its own criminal code, the legislature adopted the model of the revision draft of Japanese Criminal Code, released in 1940. However, the legislative materials, such as the statement of reasons and legislative minutes, associated with this revision draft was not released to the public, its articles being the only material available. As such, the discussion on the interpretation and further revision of KCA has been a difficult task. The plenary committee of Japanese judicial department had reviewed the draft proposed by the drafting committee, then confirmed the revision draft. I have studied and analyzed the records of the drafting committee proceedings and the stenographic records of the plenary committee proceedings which I found a few years ago. This article deals with the effect of the aforementioned Japanese draft on KCA, focusing on Chapter II (crimes concerning foreign aggression), Part II (individual provisions) of KCA. First part of this paper analyzes how the crimes concerning foreign aggression were established in the Japanese draft, and what legislative intent the Japanese drafting committee had. The latter part focuses on the problems arising from the adoption of the Japanese provisions in KCA without any consideration on legislative intent or legislative materials, such as the relationship between inducement of foreign aggression (Article 92) and taking side with enemy (Article 93), and the original intent of benefiting enemy by levying soldiers (Article 94), in the light of interpretation and further revision of KCA.