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초록

On 3 January 2013, the Seoul High Court decided, on LIu Qiang case involving an extradition request, that his extradition could not be permitted for the reason that his offense constituted a relative political offense which was more substantially characaterized by its political nature. In this case, Japan's government requested the extradition of Liu Qiang, a Chinese citizen, who burned a part of one pillar of the central gate of the Yasukuni Shrine on 26 December 2011. The Korean Extradition Act and the Extradition Treaty concluded between Korea and Japan did not provide for the definition of political offense in accordance with general practice of States. In this respect, Korean courts has become responsible for conducting the judicial interpretation concerning the determination of both what a political offense can be defined and what constitutes the elements or applicable criteria of the political offense. So far, international community has witnessed the emergence of various approaches towards determining the applicable criteria of the political offense, such as the incidence theory which is being followed in common law countries, and the subjective, objective, and mixed approach, all of which are being employed in civil law countries. The Court held that it should, in light of the purport of the political offense exception, conduct a teleological and reasonable contemplation of all the factors of political offense and a fair and comprehensive comparison of the following six elements involving all the favorable and unfavorable aspects of objective and subjective circumstances which are attributable to the perpetrator: i) the motivation of author; ii) the purpose of committing the crime; iii) the naure of the target of the offense; iv) the nexus between the political purpose pursued and the means adopted for its achievement(namely. the crime committed); v) de jure and de facto character of the offense; and vi) the seriousness of the offense. Besides, the Court stated that depending on the purpose and reasons of committing an offense, supplementary considerations should be taken into such as the historical background between an extradition requesting State and a requested State, and their differences of perception and conflicting stances surrounding certain historical facts. Conclusively, the Korean Court takes the position that, based on a dissociation of the political nature and the common nature contained in a relative political offense, the overall offense only qualify for the political offense exception if it has predominantly political nature after comprehensively considering all the above-mentioned factors, that is, if the political character superceded the character of common crime. The Court also held that the act is subjected to the 'proportionality test' whereby the crime and its method are compared and that it should examine whether the offense and the employed are proportional to the desired outcome. This position has emerged in efforts to further refine the predominance criteria by embracing the comprehensiveness and the flexibility that the predominance or proportionality theory adopted by Switzerland permits. The Korean Court fully considered various factors and changing circumstances in safeguarding the exercise of the freedom of belief so that it would not undermine the inherent foundation, philosophy and values of the political offense exception. In the ruling, the Court said that Liu's actions in Japan “appear to have stemmed from his rage at the Japanese government's position and policies on the comfort women and other historical issues,” and that Liu Qiang's “extradition to Japan would be a repudiation of the Republic of Korea's political order, the philosophy of its Constitution, and the universal values of civilized countries.”In particular, the Court in this case seems to have paved the way to expanding the category of the political offense by removing the requirement of being incidental to or part of political disturbance, civil war, or uprising from the Anglo-Saxon political incidence theory and by admitting new modes of political offense depending on changes in historical and socio-political conflict situation. It also restricts the possibility of the abusive application of the expansive concept of political offense by limiting the exception to the case where the offender pursued universal values of humankind and acted in accordance with the proportionality theory.

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