공소시효의 인권법적 문제점에 관한 헌법적 검토

Abstract

The problems of the existing “statute of limitation” system have been pointed out for a long time, and it could be termed a significant change to have revised the “statute of limitation” in the code of criminal procedure in 50 years or so while these points were questioned persistently. However, there still exists predominant problems in its revision. By approaching this subject of “statute of limitation” according to the political interests, there has been a fierce argument between the pros and cons of limitation, and these conflicts have often been expanded. We should also have settled the questions about the exclusion of “statue of limitation” in the crimes against humanity. It would have been resolved neatly if they were dealt purely within the perspectives of the human rights, independent from the political considerations in the application of extension or exclusion of the “statue of limitation”. If the demands of justice weighed down the legal stability stupendously, we could extend or exclude the scope of the “statute of limitation”. The human rights of victims get a higher rank above those of a criminal, and even those of people concerned cannot surpass them in their demand for the human rights or justice. Especially in the case of crimes against humanity, the exclusion of “statute of limitation” is currently viable on the ground of the effect of international law on the municipal law. However, it may also cause a new violation of human rights to extend the statute of limitation too far, and moreover it cannot be justified to extend or exclude the statute of limitation retroactively(the authentic retroactive force) because it enlarges the conflicts excessively. But, it can only be positively considered when the demand of justice comes prior to that of the legal stability and the infringement of the victims' human rights is too serious to neglect because it would makes a persistent legal unstability on the contrary. In the conclusion, it is not desirable for some lawmakers (assemblymen) to change the statute of limitation by enacting a special law because it is not favorable to make some exceptions of limitation on certain crimes. If the problems of statute of limitation are identifiable, it would be more appropriate to make changes within the framework of the “statute of limitation” systems as the code of criminal procedure was revised in 2007.