국가적 법익에 관한 죄에 대한 개정안

This article presents the proposed revisions to the “Offences against National Legal Interests,” developed over approximately two years by the Criminal Code Reform Committee (Fifth Subcommittee) of the Korean Criminal Law Association (KCLA), on the occasion of the 70th anniversary of the Criminal Code’s enactment in 2023. The reform is guided by two primary objectives: moderating nationalist and authoritarian elements within the criminal law and ensuring the effective performance of state functions. In the section on “Offences against the Existence and Authority of the State,” provisions were proposed to reduce nationalist overtones by abolishing the offence of Homicide for Purpose of Insurrection (Article 88) and consolidating the offences of Inducement of Foreign Aggression (Article 92) and Taking Side with Enemy (Article 93). A new offence, Aggravated Benefiting Enemy, was created, and other provisions related to Benefiting Enemy were removed. Notably, the offence of Spy (Article 98) was redefined to encompass crimes committed on behalf of a foreign state or an equivalent organization. In the section on “Offences against the Functions of the State,” several significant changes were proposed. First, new types of offences, such as Distortion of Law and Quasi-Bribery, were introduced to ensure the lawful and impartial execution of public duties. Second, aggravating provisions—including Unlawful Arrest and Unlawful Confinement Causing Death or Injury, as well as Aggravated Punishment for Bribery—were incorporated into the Criminal Code from special statutes. Notably, the Abuse of Authority (Article 123) was expanded to include the concept of “abuse of position” alongside “abuse of authority.” Furthermore, the Publication of Facts of Suspected Crime (Article 126) was revised so that not only public officials who disclose such information but also officials who disseminate it, as well as members of the general public who knowingly spread it, could be punished, thereby enhancing enforcement effectiveness. Finally, the newly proposed offences of Malicious Perjury and Coercion of Malicious Perjury, as well as Malicious Destruction of Evidence and Coercion of Destruction of Evidence, serve the same purpose: strengthening the integrity of the criminal justice process. However, a general obstruction of justice offence was not introduced due to the fact that it could lead to over-criminalization. It is hoped that this proposed revision bill will serve as a reference and guideline for future amendments to the Criminal Act. In legislation concerning “Offences against National Legal Interests,” it is essential to avoid excessively broadening the elements of the offence or imposing disproportionately severe penalties—a punitive approach often justified under the pretext of protecting national functions. Particularly during the legislative process, the principles of culpa and subsidiarity in criminal law must be upheld. It is also important to recognize that attempting to regulate extremely radical or highly exceptional cases can lead to excessive criminal sanctions. Therefore, the critical review function within the criminal law academic community must operate effectively.