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The Penal Code specifically, enumerates five crimes of negligence which are subject to punishment: (1) setting fire by negligence (Articles 180 and 171); (2) inundation by negligence (Article 181); (3) obstruction of traffic by negiigence (Article 189); (4) bodily injury and homicide by negligence (Articles 206. 267, and 268); (5) crimes concerning stolen property committed by negligence (Article 364).
In the case of intent, the Penal Code imposes a heavier penalty than in the case of negligence. Dean Ryu made a comparative study of negligence in the following terms:... the crimes of negligence in Korea are less numerous than in Germany, but more numerous than in Anglo-American la in which the crime of negligence is a very exceptional phenomenon. The Korean Code rather reseinbles the Anglo-American pattern in accepting certain acts as criminal only if committed by gross negligence, in contrast to simple negligence. Thus, the crimes of receiving stolen property are punishable only when committed by gross negligence (or negligence in the conduct of a trade). In case of setting fire, obstructing traffic, bodily injury and homicide, due to gross negligence, the punishment is aggravated. (The Korean Criminal Code, trans. by Paul Ryu, South Hackensack, N.J., Fred B. Rothman & Co., 1960, pp. 7–8.)
4. Article 17 (Casual Relationship) of the Penal Code) Conduct not connected with causation of the risk which is an element of a crime, shall not be punishable although a harm occurs.
5. Article 10 (Persons Suffering from Mental Disorders) of the Penal Code: (1) A person who, due to a mental disorder is unable to pass rational judgments or to control his will, is not punishable.
(2) The punishment of a person who, due to a mental disorder, is deficient in the capacity mentioned in the preceding paragraph, shall be mitigated.
(3) The provisions of the preceding two paragraphs shall not apply to the criminal conduct of a person who, anticipating the risk of committing crime, has intentionally incurred mental disorder.
In commenting on Article 10, Dean Ryu notes that: A simple provision for reduction of penalty in cases of diminished responsibility tends to oversimplify this important issue of criminal legislation. The uncritical reception by the Korean Code of the continental European concept of diminished responsibility is regrettable. (Ryu, op. cit., p. 28.)
There are neither provisions concerning medical treatment nor commitment of mentally disordered defendants to a mental institution under the Penal Code. The judge selects a psychiatrist and renders a judgment of insanity, taking into consideration the psychiatrist's report.
6. No provisions under the Penal Code.
7. Article 21 (Self-Defense) of the Penal Code: (1) Conduct in order to prevent impending and unjust infringement of the accused's or another person's interest shall not be punishable, provided that there are reasonable grounds therefor.
(2) Where conduct in self-defense has exceeded reasonable limits the punishment may be mitigated or remitted depending upon the extent of the available extenuating circumstances.
(3) In the situation described in the preceding paragraph, conduct due to fear, surprise, excitement, or confusion at night-time or under other insecure circumstances, is not punishable.
Article 22 (Necessity). (1) Conduct in order to avert impending danger to the legal interest of the accused or another person shall not be punishable provided that there are reasonable grounds therefor.
(2) The provisions of the preceding paragraph shall not apply to a person charged with the duty not to avoid the danger.
(3) The provisions of paragraphs 3 and 4 of the preceding Article shall apply mutatis mutandis to the present Article.
Article 23 (Self-help). (1) Where it is impossible by legal procedure to preserve a claim, conduct in order to avoid the impossibility or serious difficulties of its enforcement shall not be punishable provided that there are reasonable grounds therefor.
(2) Where conduct as described in the preceding paragraph has exceeded reasonable limits, the punishment may be mitigated or remitted depending upon the extent of the available extenuating circumstances.
8. Article 41 (Classification of Punishment) of the Penal Code: Punishment shall be classified as follows: (1) Death penalty; (2) Penal servitude; (3) Im
prisonment; (4) Deprivation of qualifications; (5) Suspension of qualifications; (6) Fine; (7) Detention; (8) Minor fine; (9) Confiscation. Each penalty is explained in Articles 42 to 50.
9.a. Article 51 (Criteria of Determination of Sentence) of the Penal Code: In determining sentence the following matter shall be taken into consideration: (1) The age, character and conduct, intellect and environment of the of. fender; (2) Circumstances regarding the victim; (3) The motive, the means and the result of the criminal conduct; (4) Circumstances after the commission of the crime.
9.b. The Penal Code provides both suspension of imposition of sentence (Articles 59-61) and suspension of execution of sentence (Articles 62–65).
9.c. Probation is a form of suspension of sentence.
9.d. There is no provision concerning supervision by a probation officer under the Penal Code. At present, only a juvenile offender under twenty years of age may be placed under the supervision of a probation offcer. (Article 32 of the Juvenile Law, Law No. 489 of 1958, Legal Dictionary, ed. by Zung-ham Kim, Seoul, Pommunsa, 1968, p. 405.)
9.e. Indeterminate sentence may be imposed only on the juvenile offender under the Youth Law (Article 54 of the Youth Law).
9.f. There is no definition of dangerous special offenders, but the Penal Code provides the following relevant provisions :
Article 35 (Repeated Crimes). (1) Where, within three years after completion or remission of the execution of a punishment, a person is convicted of an offense punishable by imprisonment or by a more severe punishment, he shall be sentenced as a repeating offender.
(2) Punishment for a repeated crime shall be twice the maximum term of that specified for that crime.
Article 36 (Discovery of Repeated Crime After the Imposition of Sentence). Where, after imposition of a sentence, the crime is discovered to be a repeated one, the punishment may be determined de novo by increasing that imposed by sentence at the trial, except where the execution of that sentence has been completed or the punishment remitted.
9.g. Chapter I, Crimes of Insurrection (Article 87-90) of the Penal Code contains the following provisions :
Article 87 (Insurrection). A person who creates a disorder for the purpose of usurping the national territory of subverting the National Constitution shall be punished according to the following classification:
(1) A ringleader shall be punished by death, penal servitude for life or imprisonment for life.
(2) A person who participates in, or directs the plot, or engages in other important activities shall be punished by death, penal servitude, or imprisonment for life or for not less than five years: the same shall also apply to a person who has himself engaged in killing, wounding, destroying or plundering.
(3) A person who merely responds to the agitation and follows the lead of another or merely joins in the disorder shall be punished by penal servitude or imprisonment for not more than five years.
Article 88 (Homicide for the Purpose of Insurrection). A person who kills another for the purpose of usurping the national territory or subverting the National Constitution shall be punished by death, penal servitude for life or imprisonment for life.
Article 89 (Attempts). Attempts to commit the crimes of the preceding two Articles shall be punished.
Article 90 (Preparations, Conspiracies, Agitation, or Propaganda). (1) Any. one who makes preparations or conspires with intent to commit the crimes of Articles 87 or 88 shall be punished by limit penal servitude or imprisonment for not less than three years, but when a self-determination is made before the intended crime has reached the commencement stage, the punishment shall be mitigated or remitted.
(2) The preceding paragraph shall apply to a person who agitates or propagates the commission of the crimes of Articles 87 or 88.
9.h. Certain crimes carry mandatory prison sentences. For example, Article 241 of the Penal Code states :
Article 241 (Adultery). (1) A married person who commits adultery shall be punished by penal servitude for not more than two years. The same shall apply to the other participant.
9.i. Article 72 (Parole Requisities) of the Penal Code: A person serving a sentence of penal servitude or imprisonment whose behavior has been good and who has shown sincere repentance may be provisionally released by an act of administrative discretion after he has served ten years of a life sentence or one-third of a limited term of punishment.
(2) If a fine or minor fine has been imposed concurrently with the punishment specified in the preceding paragraph, the amount thereof shall be paid in full.
Article 73 (Custody Before Imposition of Sentence and Parole). (1) For the purpose of release on parole, the number of days of custody before imposition of sentence, included in the period of sentence, shall be calculated as time served.
(2) In the case of paragraph 2 of the preceding Article, the number of days of custody before imposition of sentence calculated as the period of internment in lieu of a fine or minor fine shall be deemed to be the payment of a corresponding amount.
Article 74 (Nullification of Parole). Where, during the period of parole, a judgment imposing a sentence of imprisonment or a more severe punishment becomes final, the release on parole shall lose its effect; this shall not apply where the sentence is imposed upon a crime of negligence.
Article 75 (Revocation of Parole). Where a person released on parole violates the parole regulations concerning surveillance, the parole may be revoked.
Article 76 (Effect of Parole). (1) Where since the granting of parole. ten years of a life sentence, or the remaining term of a limited punishment, elapses without nullification or revocation of the parole, the execution of punishment shall be deemed to have been completed.
(2) In the case of the preceding two Articles, the number of days spent during parole shall not be included in the term of punishment.
9.j. Prisoners are released on parole by an administrative agency known as the Parole Administration Committee which is under the jurisdiction of the Minister of Justice (Articles 49 to 52 of the Penal Administration Law, Law No. 1222 of 1962; the Offenders Rehabilitaiton Law, Law No. 730 of 1961).
9.n. Under Article 323 of the Code of Criminal Procedure, it is provided that in pronouncing sentence, the reasons for the judgment shall contain facts constituting crimes, the gist of the evidence and application of relevant laws.
9.o. Sentences are subject to review by the Appellate Courts including the Supreme Court. The Appelate Court has the power to raise or lower the sentence imposed by a lower court, but it cannot impose a penalty heavier than that imposed by the trial court in a case appealed by the defendant (Articles 364 (6), 368 and 396 of the Code of Criminal Procedure).
9.p. Both the Government and the defandant may appeal (Article 338 of the Code of Criminal Procedure).
9.q. There are no standards for review of sentencing under the Penal Code. The Code of Criminal Procedure, however, lists, inter alia, an "improper sentence” as one of the grounds for appeal to the court of second instance, which must be alledged in writing (Article 361-5 of the Code of Criminal Procedure). Also included as grounds for appeal to the Supreme Court is “an inappropriateness of sentence in a case in which the death penalty or penal servitude or imprisonment for not less than ten years has been adjudged" (Article 383 of the Code of Criminal Procedure). Generally, an Appelate Court and the Supreme Court decide only the issues raised by the appellant in writing. Thus the Code of Criminal Procedure provides :
Article 364 (Judgment by the Appellate Court). (1) The appellate court shall render a decision on the basis of the grounds stated in the reasons for appeal.
Article 384 (The Scope of Appeal). The Supreme Court shall render a decision on the basis of the grounds stated in the reasons for appeal. ...
9.r. Not applicable.
Article 38 (Concurrent Crimes and Application of Punishment). (1) When concurrent crimes are adjudicated at the same time, punishment shall be imposed in accordance with the following standards:
(1) In the event that the punishment specified for the most severe crime is a death penalty or penal servitude for life or imprisonment for life, the punishment provided for the most severe crime shall be imposed.
(2) In the event that the punishments specified for each crime are of the same kind, other than a death penalty or penal servitude for life or imprisonment for life, the maximum term or maximum amount for the most severe crime shall be increased by one half thereof, but shall not exceed the sum total of the maximum terms or maximum amounts of the punishments specified for each crime, except that several minor fines or several confiscations may be imposed together.
(3) In the event that the punishments specified for each crime are of a different kind, other than penal servitude for life or imprisonments for
life, they shall run consecutively. (2) As to each paragraph of the preceding Section, penal servitude and imprisonment shall be regarded as the same kind of punishment.
Article 39 (Concurrent Crimes not Adjudicated : Several Judgments and Concurrent Crimes: and Execution of Punishment and Concurrent Crimes). (1) Where, of several concurrent crimes, one or more have not been adjudicated, sentence shall be imposed for the latter.
(2) Where several judgments as set forth in the preceding Section have been rendered, they shall be executed in accordance with provisions of the preceding Article.
(3) Where a person sentenced for concurrent crimes receives amnesty or remission of the execution of punishment with regard to any one of them, punishment for the remaining crimes shall be determined de novo.
(4) In the execution of punishment specified in the preceding three Sections, the period of sentence already served shall be taken into account.
Article 40 (Compound Crimes). When conduct constitutes several crimes, punishment provided for the most severe crime shall be imposed.
9.u. A judgment imposing a fine, minor fine, etc. is enforced upon the order of a public prosecutor and his order is as enforceable as a confession of judgment on an obligation (Article 477 of the Code of Criminal Procedure). In this case, the provisions of the Code of Civil Procedure relating to confession of judgment apply by analogy to this kind of order. Article 70 of the Penal Code also provides that “when rendering a sentence of a fine or minor fine, the court shall simultaneously determine and decree a substitutive term of internment in a workhouse in the event that payment of such fine or minor fine is not made in full."
9.v. Article 69 (Fine and Minor Fine) of the Penal Code: (1) A fine and a minor fine shall be paid within thirty days from the day when the judgment has become final, but when a fine is imposed, interment in a workhouse in lieu of the fine unless and until the amount is paid in full may be concurrently ordered.
(2) A person who does not pay a fine in full shall be interned in a workhouse and work for a term of not less than one month nor more than three years, or, in case of a minor fine, of not less than one day but not more than thirty days.
9.w. A fine is fixed depending upon the gravity of the offense of which the defendant is convicted.
10. The Penal Code provides the following:
Article 15 (Mistake of Fact). (1) Criminal conduct in ignorance of facts which aggrevate a crime is not punishable as the aggrevated crime.
Article 16 (Mistake of Law). Where a person commits a crime in the belief that his conduct does not constitute a crime under existing law, he shall not be punishable only when his mistake is based on reasonable grounds.
Under the provision of Article 16, an unreasonable mistake of law affords no excuse whatever, except in case of extenuating circumstances.
12. The Penal Code contains crimes committed by Koreans and by aliens (Articles 3 and 5); crimes committed by aliens on board a Korean vessel or aircraft outside Korea (Article 4); crimes committed abroad against the Republic of Korea and Korean nationals (Article 6).
13. The Penal Code provides only for conspiracy to commit insurrection, foreign aggression or private war, as prescribed in Articles 90, 101 and 111:
Article 90 (Preparations, Conspiracies, Agitation, or Propaganda). (1) Anyone who makes preparations or conspires with intent to commit the crimes of Articles 87 or 88 (insurrection) shall be punished by limited penal servitude or imprisonment for not less than three years, but when a self-denunciation is made before the intended crime has reached the commencement stage, the punishment shall be mitigated or remitted.
Article 101 (Preparations, Conspiracies, Agitation or Propaganda). (1) A person who makes preparations or conspires with intent to commit any of the crimes of Articles 92 through 99 shall be sentenced to penal servitude for a limited term of not less than two years; but when self-denunciation is made before the intended crime has reached the commencement stage, the punishment shall be mitigated or remitted.
Article 111 (Private War Against Foreign countries). (1) A person who wages a private war against a foreign country shall be punished by limited imprisonment for not less than one year.
(2) Attempts to commit crimes described in the preceding paragraph shall be punished.
(3) A person who makes reparations or conspires with intent to commit the crime of paragraph 1 shall be punished by imprisonment for not more than three years or fined not more than twenty-five thousand hwan....
14. Article 15 of the Penal Code provides that “where, due to certain consequences of a crime, a more severe punishment is imposed thereon, the more severe punishment shall not be applied if such consequences were not foreseeable." Under the above provision, A, an instigator, is responsible for instigating an aggravated bodily injury only if, at the time when he instigated B to inflict a bodily injury upon C, the latter's death was foreseeable.
15. No. 16. No.
17. The Penal Code prohibits importation, manufacture, or sale of smoking opium and implements used for smoking it (Articles 198 to 206). There exists the Opium Law which is designed to control importation, exportation, sale or distribution of raw opium, marijuana and other narcotics Law No. 1954 of 1957).
The Penal Code prohibits abortion by any means, whether self-induced or performed by another person including a doctor, midwife and pharmacist (Articles 269 to 270), but it is not well enforced as Professor Hahm describes :
The apprehension and prosecution of offenders has been sporadic. There has been no public outcry that might have prompted a more vigorous enforcement of the law. In a few cases where an abortion results in the death of a woman, the law-enforcement agencies institute criminal proceedings against the offenders. In the overwhelming majority of the cases, however, where abortions are successful, the law remains utterly unconcerned. (Pyong-Choon Hahm, The Korean Political Tradition and Law, Seoul, Hollym Corporation, 1967, p. 234.)
The Penal Code provides for absolute prohibition of gambling, betting, lotteries for gain, and operation of gambling establishments (Articles 246–249). Althrough the Code does not provide for the crime of prostitution, the Prostitution Prevention Law (Law No. 771 of 1961) carries penal sanctions for the maintenance of houses of prostitution and for the parties of prostitution. An indecent act performed in public is punishable and distribution or sale of any pornographic writing, picture, or other object, or displaying the same in public is made a criminal act (Articles 243–245). Homosexual activity is not punishable.
18. Firearms are not regulated by the Penal Code, but are strictly controlled by the Gun and Gunpowder Control Law (Law No. 835 of 1961). On the control of explosives, the Penal Code provides :
Article 119 (Use of Explosives). (1) One who injures a person or damages property or disturbs the public peace by using explosives shall be punished by death, penal servitude for life or for not less than seven years.
(2) A person who commits the crimes of the preceding paragraph in time of war, a calamity or other (warlike) incident shall be punished by death or penal servitude for life.
(3) Attempts to commit the crimes of the preceding two paragraphs shall be punished.