2025년 형법 중요판례 분석

초록

This article analyzes a selection of Supreme Court criminal law decisions handed down in 2025 that raise particularly significant issues in criminal law theory. It focuses on decisions addressing legal issues largely unexplored in prior case law or academic literature. Through this analysis, it critically reassesses the theoretical coherence and validity of the legal principles articulated in those decisions. The Supreme Court’s holding that the dual liability provision under the Korean Criminal Code applies even to a foreign corporation where its employee’s violation was committed in Korea is persuasive from the perspective of the theory of ubiquity. By contrast, the Court’s reaffirmation that the attempt provision governing result-aggravated offense is inapplicable where the underlying offense remains at the attempted stage is open to question, as it appears inconsistent with the principle of culpability given that the degree of wrongfulness varies depending on whether the underlying offense has been completed or merely attempted. The prevailing view and the Supreme Court’s position that, in the compound offense of nighttime residential burglary, the commencement of the offense occurs upon the act of trespass should be reconsidered. The more persuasive view is that the commencement of the offense should be determined by the initiation of the act of theft, as in the basic offense of theft. The Supreme Court held that only a natural person can be the target of deception in the offense of fraud. However, that position appears increasingly difficult to sustain in a modern society where non-face-to-face transactions have become the norm. The Supreme Court held that, for purposes of the offense of disclosure of official secrets, the fact that no instruction concerning custodial measures, such as arrest or detention, had been given in the course of an investigative directive constituted an official secret. The decision is persuasive in recognizing that not only the affirmative fact that a particular measure has been taken, but also the negative fact that no such measure has been taken, may constitute an official secret.

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