형법 제3조(내국인의 국외범) 해석론

The majority and precedents consider the ‘active personal principle’ of Article 3 of the Criminal Act. If the Korean people violate the Korean Criminal Act outside the territory of the Republic of Korea, the Korean Criminal Act Code applies even if the act is not guilty in foreign countries. The majority and precedents are based on the grammatical interpretation and the historical interpretation. Among the various measures to reduce the scope of application of Article 3 of the Criminal Act, it is argued that Article 6 Provision Clause is applied in analogy. I think that the analogy of Article 6 Provision Clause is not appropriate. In order for an analogy to be applied, there should be no legal provisions to be applied. But the Article 3 of the Criminal Code already exists. I am careful to introduce ‘teleological reduction’ in Article 3 of the Criminal Act. One of the reasons why it is difficult to make ‘teleological reduction’ in Article 3 is that Article 3 is a general provision, not an particular provision. The reason for adopting teleological reduction comes from the justice demand that different things should be treated differently. The Seoul High Court recently ruled on June 14, 2018 presented a completely different solution from the existing interpretation. The analogy of Article 6 Provision Clause or ‘teleological reduction’ restricts the general clause of Article 3 of the Criminal Code. This is a very stable approach because it is applied uniformly in the bilateral punishment. But this cannot consider the severity of each act in our society properly. The Act is not punishable only because it is allowed in foreign countries. In my view, it is necessary to judge the severity of the act according to the judging criteria of illegality proposed by the Seoul High Court judgment.