형법 제1조 제2항과 형사소송법 제326조 제4호의 적용 대상인 ‘법령의 변경’의 의미와 판단 기준

Abstract

The gist of the subject case is whether to apply Article 1(2) of the Criminal Act and Article 326 Subparag. 4 of the Criminal Procedure Act in a case where a statute has been amended after a crime was committed, whereby the act in question no longer constitutes a crime or a punishment has been mitigated, to follow a new law that has been amended to the advantage of the defendant. Previously, with regard to the standards for determining which norms of trial practice to apply, between the principle that the law in effect at the time the crime was committed should be followed (the “ex post facto” rule) and the principle that the law in effect at the time of trial should be followed, in the case where a statute on criminal punishment has been amended to the advantage of the defendant, the Supreme Court adhered to a legal doctrine established by precedents that Article 1(2) of the Criminal Act and Article 326 Subparag. 4 of the Criminal Procedure Act apply only when the change of law is attributable to legislative intention based on the awareness of the unreasonableness of the previous punishment or an excessively harsh sentencing decision. This legal doctrine that legislative intention should be considered when determining whether to allow the retroactive application of a new law amended to the benefit of the defendant (hereinafter “intention-focused doctrine”) has been formulated since the 1960s through a number of court opinions. Yet, the intention-focused doctrine has been constantly criticized for its ambiguity and obscurity of the standards and method of determining the legislative intention, which obstructs legal certainty over applicable laws in criminal proceedings, which should be guaranteed for subjects of law. The subject case abolishes the intention-focused doctrine and provides a new legal doctrine that is clearer and more foreseeable. Under the new legal doctrine, Article 1(2) of the Criminal Act and Article 326 Subparag. 4 of the Criminal Procedure Act apply as a matter of principle in the event that either a criminal penal statute stipulating elements of a crime or a statute that has been entrusted or delegated therefrom is subject to change, whereby the act in question no longer constitutes a crime or a punishment has been mitigated, as this circumstance naturally presupposes a change in criminal legal perspective with regard to punishability of the relevant criminal penal statute; this is likewise the case where a criminal penal statute either entrusted or delegated the authority to determine some elements of a crime to, instead of statutes and orders stipulated in the Constitution, but public notices, such as administrative rules and orders and ordinances. Since most incidences where changes in law provoked a need to redetermine whether to impose a criminal punishment and, if so, severity of such punishment, has been concerned with the case indicated in this paragraph and, therefore, it has become clear that a new law that is in effect at the time of trial should be applied as the norm of a trial of many cases where the application of Article 1(2) of the Criminal Act and Article 326 Subparag. 4 of the Criminal Procedure Act were at dispute. Furthermore, with regard to changes in laws that were not entrusted or delegated, the subject case stated that Article 1(2) of the Criminal Act and Article 326 Subparag. 4 of the Criminal Procedure Act were applicable when the pertinent change could be considered to be mainly based on the transformation of criminal legal perspective that is directly related to the establishment and punishment of a crime under the relevant criminal penal statute. In addition, the subject case concluded that the elapse of a specific date or period prearranged by a statute did not constitute a change in law based on the transformation of criminal legal perspective, which is subject to Article 1(2) of the Criminal Act and Article 326 Subparag. 4 of the Criminal Procedure Act. The subject case proposed, based on the statutory text, a clearer, foreseeable, and reasonable standard and method of determining the norm of a trial in a criminal case involving changes in law, whereby whether to apply a law in effect at the time when a crime was committed or a law in effect at the time of trial became a point of dispute, as well as a specific legal doctrine that could apply to representative cases. This Article attempts to examine the meaning and rationale of a new legal doctrine suggested by the subject case and provide a specific explanation of the intention of the legal doctrine through example cases.