북한이탈주민이 북한에서 범한 범죄의 형사처벌에 대한 연구 - 수원지방법원 2013고합846 국가보안법위반 사건과 관련하여 -

urrently the number of North Korean defectors who entered South Korea exceeds 28,000 people and there are a considerable number of people who have committed crimes in North Korea and have come to South Korea. There are many victims as well. Moreover, according to the North Korean law and order, perpetrators are considered also offenders, who acted against the regime and political criminals. There are also situations in which the victims request the punishment of the perpetrators. However until now the South Korean government has not taken any measures concerning these issues apart from excluding from protection people who have committed grave crimes in North Korea or who have actively defended the North Korean system (as stipulated by the “North Korean refugees protection and settlement support act”). There are cases in which victims filed suits against perpetrators who committed a crime in North Korea and then entered South Korea but these have been ignored up by all government institutions. However as in the study case examined in this research, even if it is claimed that a crime has been committed by a North Korean citizen in North Korea, in cases when the investigation agency recognizes it, or especially when the victim demands the punishment of the perpetrator and the investigation agency accuses or charges him/her, from a political and policy perspective, the victims cannot be ignored, and a situation arises where the only solution is to reach a judgment, which defines the victims following the principles of constitutional states. In a constitutional country like South Korea, the demands for the punishment of perpetrators cannot be blindly ignored. In the future there would be many more cases like this and if clear standards are not established and punishment is not exacted, this will damage the constitutionalism in South Korea. If the demand of the victim for punishment is not fulfilled, this will cause disappointment and animosity, let alone inability of the North Korean victims to adjust to the South Korean society, where they came trusting the ROK government. In the future such results would act as an impediment to the unification of South and North Korea and to social integration. Consequently standards should be prepared for the adequate punishment of crimes perpetrated in North Korea. The purpose of this thesis paper is to propose the application of a minimum punishment for perpetrators, citing the principles of national sovereignty, constitutionalism and legality (“nulla poena sine lege”) regarding the criminal acts of North Korean citizens (including crimes against the North Korean system). Viewing them as South Korean citizens, the paper proposes the application of the South Korean criminal law and the application of a constitutional state’s principles in order to punish the perpetrators thus simultaneously meeting the victims’ demand for punishment and facilitating the reconciliation and cooperation between South and North Korea, as well as promoting unification and social integration. In this regards, perpetrators who are North Korean citizens are viewed as South Korean nationals but should be treated as foreigners in order to be punished according the South Korean criminal law. The very punishment and its scope differ depending on the specific benefits and protections of the law stipulated by the Criminal Law, or in other words depending whether the benefits and protections are national, social or individual. Therefore crimes should be analyzed with this consideration. However with the expansion of the scope of punishment it is evident that the theory of analysis is insufficient and conducting only analysis is not appropriate in a situation where pursuing unification the exchanges and cooperation between North and South Korea are increasing. In order for the crimes of North Korean defectors perpetrated in North Korea not to become an obstruction to their activities in South Korea, and in order not to ignore the victims’ demands regarding the punishment of the perpetrators, and to also present standards for a transitional justice process that will be needed for the upcoming unification period, standards should be sought for the punishment of the crimes committed in North Korea by North Korean defectors. However this cannot be sufficiently done only by analyzing the existing laws. From this point of view there is a need for the establishment of a new special law or for reforming the current “North Korean refugees protection and settlement support act”.