광현호 선상살인사건에 대한 형사재판의 쟁점

This study is intended to scrutinize the relevant issues of the criminal law and criminal procedure law in relation to the criminal trial for the murder case on board Gwang-Hyeon Ho and propose the improvement thereof. The result of this study can be summarized as follows. First, the court held that there was not enough evidence to give a judgement of guilty for mittaterschaft through natural inference in the criminal trial for the murder case on board Gwang-Hyeon Ho. That is to say, the reason why the supreme court did not approve mittaterschaft was understood to be in consistent with the principle of in dubio pro reo which is one of the fundamental principles of strafjustiz. Through the criminal trial for the Gwang-Hyeon Ho case, it can be reconfirmed that the difficulty in collecting sufficient evidence due to physical conditions and time constraint would be the most bottleneck problem in the investigation into the remote shipboard cases. Nontheless it is pointed out that the reasoning of the court why mittaterschaft was denied through a bit of obstinate inference. Second, the Republic of Korea could well have the criminal jurisdiction for the Goang-Hyeon Ho case based on the flag state jurisdiction and schutzprinzip and furthermore the criminal prosecution could have been made by the ROK because Vietnam which would have had its jurisdiction based on the personal principle gave up exercising its authority over the case. The location of the suspect’s whereabouts is above all the crucial issue in order for the investigation and trial to be realized for the crime occurring remote in high seas. The investigation agency obtained the summons for questioning suspects and execute the warrant on the Gwang-Hyeon Ho and then escorted them to Korea. Then, of 10 days of maximum arrest period, it took 3 days to execute the warrant itself and only 7 days was actually allowed to arrest and investigate the suspects. Therefore it is necessary to improve the situation where the location of the suspect’s whereabouts and adequate period of arrest could be assured for the remote crime cases. Third, it is suggested after considering preceding cases in foreign countries having similar experiences of addressing just and reasonable handling of the remote crime on board that firstly the sentence of “… or from the day when an investigative authority received an arrestee … except the case in that the suspect is arrested outside of territory of the ROK, the arrest warrant shall be requested within 48 hours from the arrival in the territory of the ROK.” should be newly added to the paragraph 5 of Article 200bis in the criminal procedure law. And paragraph 1 of Article 213 needs to be amended to read as “When any person other than a prosecutor or a judicial police officer arrested current criminal, unless inevitable reasons exist, criminal shall be delivered promptly to the prosecutor or judicial police officer.” Furthermore, in order to ensure the sufficient arrest period necessary for investigation, it is needed that Article 203bis shall be amended to read as “except the period of arresting a suspect outside of the territory of the ROK, the arrest period of Article 202 or Article 203 shall be counted from the day of arrest or apprehension. In short, for the investigation and the trial of remote crime on board such as the Gwang-Hyeon Ho murder case, core elements are the speedy location of the suspect’s whereabouts and the collection of evidence. The proposal above could not address all the issues but it is inevitable in order to ensure just and reasonable criminal prosecution for such remote crime.