판례의 소급변경

Abstract

There is a controversial problem whether the court could find guilty or increase the punishment about the action which was expected to be not-guilty or to be punished lightly. Regarding this problem, the Supreme Court has positive opinion, but there is strong negative opinion, too. According to the positive opinion, there is a problem that the actor is given disadvantageous treatment through the alteration of the Precedent. However, with the negative opinion, it has a problem which cannot satisfy the change of the social reality. In a meanwhile, about this problem, there are eclectic opinions, so called, the quotation theory of the article 16 in the Criminal law and the theory which is suggested that alteration of the Precedent should be noticed in the reason for judgment and applied to the cases after the alteration of Precedent. However on the quotation theory, there is a problem which could be logically contradiction that an action without any knowledge of the Precedents should not be treated in view of the mistake of the illegality, even if an action without any knowledge of the law could be conformed to the mistake of the illegality, because it is, generally, more difficult to know the existence or alteration of the Precedents than to know the existence or the alteration of the law. Therefore, fundamentally, the last theory is considered reasonable, but this opinion like others is not enough to protect the actor’s trust, because it could be severe that the altered precedents could be applied to the actor though he or she has no idea of the alteration. In conclusion, the alteration of the Precedent should be noticed and it is only valid that this alteration should be applied after this notice is announced to the public as much as the alteration of the law. In order to do this, the procedure should be prepared to be announced the notice of the alteration of the Precedent to the Public.