죄형법정주의에 관한 한국판례의 동향

Abstract

The principle that there must be no crime or punishment except in accordance with fixed, predetermined law, which guarantee function of rule of law in criminal law, is a self-evident principle of criminal justice and at the very heart of many constitution, The Article 12 Clause 2, the Article 12 Clause 3 of the Constitution and the Article 1 of the Criminal Code carry the banner of this principle. In general, the maxim has four important corollaries: penal statutes must be strictly construed, the prohibition or limitation on the use of analogy in judicial interpretation, the requirement of specificity and the prohibition of ambuiguity in criminal legistration and non-retroactivity of law. Although the maxim and its colloraries have now the theoretical basis of criminal law in each country, there is many different opinions about details, the application of the maxim and its colloraries. The existing state of application of the maxim in each country reflects its level of constitutional state, on the other hands, its level of perspectives over criminal law, which theory and praxis of each country have. As a whole, precedent cases come into its own as an playing an important role in realizing the principle of constitutional state in the field of criminal law. Especially, According to increase of the field of special criminal law, precedent cases have regulated definitely the standard of legal control through the deprived principle of specificity and the prohibition of mandatory legistration. But, relating to the prohibition od analogy and retroactivity of law, regrettably precedent cases did not distinguish the interpretation of law from analogy and broaden the range of legal interpretation, did restrict the retroactive application of law favorable to the defendant. Further more, to strengthen the function of the maxim, it is necessary to control the contents of criminal enactments by means of the constitutional principle of proportionality.