형법 제1조 제2항의 적용 관련 변경된 대법원 판례에 대한 비판적 고찰

Abstract

The Supreme Court announced ‘2022. 12. 22. Sentence 2020Do16420 Through the unanimous decision, the motivation theory, which had been firmly maintained for the past 60 years, was abolished. Regarding this, there is a view that highly values ​​the Supreme Court's discarding of the motivation theory, and I agree with this view. However, this change in the Supreme Court's precedent leaves something to be desired in specific aspects. The Supreme Court stated that in order to qualify as a 'change in law' under Article 1, Paragraph 2 of the Criminal Act, a newly proposed 'change in the perspective of criminal law' must be prerequisite. But, doubts remain as to whether the newly proposed ‘change in the perspective of criminal law’ will be able to solve the problems of the existing ‘the motive theory’ and function properly as a new standard. If the new standard does not function in resolving the problems pointed out above, the Supreme Court's change in precedent can be said to be nothing more than a change from the ‘old motivation theory’ to the ‘new motivation theory.’ Therefore, ‘change in law’ in Article 1, Paragraph 2 of the Criminal Act means a change in the overall legal status and includes not only laws but also orders, and also includes changes to other laws, including the Temporary Act. Therefore, in order to apply Article 1, Paragraph 1 of the Criminal Act, it is believed that using legislative methods, including transitional provisions, better maintains legal stability and the protective function of the criminal law.