형사실체법의 개정 동향과 평가

Abstract

The criminal law was enacted on September 18, 1953. Characteristics of revision of criminal law from then on can be summarized as emphasis of general prevention through introduction of some new criminal sanctions, insertion of new crimes and enhancement of legal penalties. Recently, there was revision that changes Japanese transcriptions or difficult Chinese characters in legal provisions into Korean equivalents. Notwithstanding such revision, criminal law is still maintaining system and form of the days it was first enacted in 1953, the law has mounting challenges such as full-scale revision of general rules, incorporation of special criminal law into general criminal law etc. The majority of provisions in special criminal law are penalty regulations improvised in unstable reality of politics and society. For the reason, symbolic legislations to conform with the need of the people for punishment by strengthening legal penalty against issues that the public attention is focused are forming the mainstream. Accordingly, there have been criticisms criticism that it is not suitable for the system of criminal law. A large number of provisions in special criminal law have been removed through the decision of unconstitutionality. Nevertheless, legal penalties in newly-legalized criminal provisions are still severe punishment. And political and symbolic legislations to obtain a mere preventive effect are still ongoing. The stream of criminal law is still evaluated as the level that take precautions against overcriminalization and overpunishment yet. On the contrary to the foregoing, there is an opinion that overall evaluation of the revision of criminal law is a revision that emphasizes a criminal policy with the principle of severe punishment and martinetism, that is to say the general prevention. For one reason or another, the stream of the revision of criminal law is inclined to the emphasis of overcriminalization, overpunishment and general prevention is an undeniable fact. In the meanwhile, special prevention for the purpose of punishment has been relatively downsized and a situation that discussion of other political alternatives to cope with crimes cannot take place is being created. From now on, discussion of the system of criminal law including criminal sanctions such as punishment, security measure, the third sanction etc. need to be handled in the discussion about overall revision and phased conversion of special criminal law into general criminal law shall also be made.