Studies on criminal acts and regulations of foreign countries including Criminal Act, Criminal Procedure Act, Criminal Administration Act, etc. have been only focused on simple translation. Comparative study and methodology has been established as a major research tool for studies of criminal acts and criminal policy. However, it only narrowly looked into some issues of some countries in a very segmented way, which is far from the original purpose of comparative law research of seeking to expand the horizon of thoughts and perspective. Therefore, there is an urgent need to seek ways to introduce and conduct a comparative analysis on various legislative examples, theories and court decisions as well as systems of foreign countries for each criminal issue at a more comprehensive and structured level, so that they can be appropriately incorporated into the criminal system of South Korea. In addition, cross-border crimes and crimes committed by multi national companies or foreign corporations have been rapidly increasing while more and more cases of international judicial assistance or criminal extradition are observed due to crimes in overseas countries or committed by foreign nationals. However, the lack of information regarding criminal regulations and procedures in the counterpart countries leads to challenges in pursuing judicial assistance and extraditing and investigating criminals of foreign nationals. Considering the public interest at stake, the need to carry out comparative research on criminal acts and regulations of major countries is rising day by day.
With such needs in mind, the objectives of this study are as follows. First, it is to discover general theory of criminal act from a theoretical perspective. In other words, it is to know whether discovering and establishing a global standard, and find implications and conclusions for each relevant issue accordingly. Second, this study intends to compare and analyze statutory provisions, court decisions and related systems that serve as tools because of a realistic need from legislation or revision of an act, and reform of a system or practice. Third, it also seeks to propose a global standard and procedure for international judicial assistance, and recommend norms or basic directions to refer to during the process of investigating or putting a suspect on a wanted list. Lastly, this study will look into a possibility of building and operating an organized overseas criminal regulation information system based on the result of the previous efforts.
Having mentioned the above objectives, this study first wants to introduce general and individual provisions of criminal code, criminal procedure act, and the system and contents of international judicial assistance especially concerning the UK, US, France, Germany, and Japan. For each individual issue, related provisions will be translated, essential gist will be compared and analyzed, and relevant systems and court decisions will be introduced. Currently the scope of research is limited to five countries due to several realistic considerations, but it can be expanded, if conditions permit, to other countries starting from neighboring Asian states. Meanwhile, this study is distinctively different from previous comparative legal research in that it looks into the criminal system of these countries as a whole at a more comprehensive level comprising actual provisions, theories, court cases, and related systems.
In particular, general provisions of criminal codes of these five countries are compared for each issue this year. The overview of criminal code of each country will be introduced, followed by briefing about legal source and scope of application, and then basic principles including principle of legality will be highlighted, after which the concept of a crime and components of a crime of each country will be comparatively analyzed. The methodology of the research is as follows. First, those with research experience in each country or with relevant language skills were included in the researcher group to ensure expertise. Second, as a way of satisfying a general table of contents of comparative study, the same big frame applied to all the countries, with detailed sub-contents designed to vary depending on the specificity of each country. The common items that apply to all the countries are a) Source of law and scope of application, b) Principle of legality c) Concept of a crime and liability requirements theory, d) Objective elements of a criminal act, e) Subjective elements of a criminal act, f) Defense, and g) Corporate criminal liability. Out of these, the f) Defense will be elaborated differently as justification and excuse under Common Law versus circumstances precluding wrongfulness and reasons precluding accountability under Continental Law.Third, the sub-items vary from country to country. However, looking at the whole table of contents of any country will reveal that the objective elements of a criminal act comprise causation and act/omission, while subjective ones include intent/negligence and mistakes of facts. Also, defense or circumstances precluding wrongfulness both has self-defense, necessity and consent, while excuse or reasons precluding accountability commonly has minority, insanity, intoxication, duress and mistakes of law. Fourth, most importantly, the ultimate goal of a comparative legal study is functional, which is to solve real world problems. In this regard, ten main issues were selected from General Provisions of Criminal Act of South Korea, most controversial and hotly debated recently. They are: retroactive application, scope of application, corporate criminal liability, act/omission, causation, criteria to determine properness of circumstances precluding wrongfulness, age of criminal minor, insanity, intoxication, and intent/negligence. These issues and relevant court decisions were presented to research members to see whether they have similar cases in their respective countries. It was our intention to introduce leading cases for each issue by showing facts, summary of the decision and comment for the case. It turned out similar issues did exist in different countries, so relevant court decisions from different countries are mentioned where needed. Fifth, based on the discussion on each country, similarities and differences were identified as compared to Criminal Act of South Korea. First, under Common Law, a) Crime structure and burden of proof, b) Objective and subjective elements of a crime, and c) Justification and excuse as defense were explained while a) Structure of a crime, b) Composition requirements, c) Circumstances precluding wrongfulness, and d) Reasons precluding accountability were elaborated under Continental Law respectively for more detailed comparative analysis.
To sum up the conclusion of this year’s research, the elements required to compose a crime under both Common Law and Continental Law systems are not that different. The US Model Penal code defines a crime as “a conduct without justification and excuse.” This analytical frame is also valid in the crime structure theory of other countries depending on how to look at the relations between conduct and mens rea. That is, a criminal liability under Common Law system requires offence and defences. Wrongful conduct comprises actus reus or objective element and mens rea or subjective element, while defense consists of justification and excuse. Such a structure also corresponds with that of Germany. In other words, actus reus with objective compositive elements, mens rea with subjective compositive elements, justification with circumstances precluding wrongfulness, and excuse with reasons precluding accountability. The two legal systems allow comparative analysis in their elements of a crime. However, there are general differences. First of all, criminal act of US and UK does not give that much importance to definitions and categorization at different levels of research. Instead, the US Model Penal Code only considers an analytical frame for convenience purpose. Unlike Continental Law, Common Law system does not reflect and consider criminal accountability. Furthermore, it has maintained clear distinction between offence and defence, rather than considering a structure of a crime as a prerequisite to attribute criminal accountability to a person. The Continental Law system usually ignores such distinction, which attests to how procedural law has persistently been regarded as more important than substantive law under the criminal law of US and UK. Such distinction separates cases need to be proven by the State authorities.