ʻʻ외국에 대한 사전(私戰)죄ʼʼ 연구

Article 111 of the Criminal Act stipulates the punishment for those who wage a private war against a foreign country, as well as for attempts, preparations, or conspiracies to commit such acts. However, since the enactment of the Criminal Act, this provision has never been applied. Furthermore, academic discussions on the subject have been limited to textbooks, with little in-depth analysis. Recently, the issue of whether the private war offense could apply to individuals participating in the Russia-Ukraine war has sparked renewed interest in this provision. This study first examines what constitutes a private war by analyzing historical cases, such as D'Annunzio's occupation of Fiume and Lucjan Żeligowski's occupation of Vilnius, to understand their developments and significance. It then traces the legislative history of the private war offense in the Korean Criminal Act. Beginning with the legislative intent behind the private war offense in Japan's old Penal Code of 1880 and Boissonade's perspective, the study reviews legislative theories discussed during Japan's subsequent Penal Code revisions. Notably, since Korea's private war offense was heavily influenced by the 1940 Revision Draft of the Japanese Penal Code, rather than the 1907 Japanese Penal Code, the drafting process of the 1940 revision is also examined. By reflecting on the views expressed during the legislative process, this paper develops an interpretative framework for the private war offense, focusing on key issues such as its legal nature, organized armed attacks involving multiple individuals, the scope of application of the Criminal Act, and its relationship with other crimes.