동기설 폐기의 타당성 - 대법원 2022. 12. 22. 선고 2020도16420 전원합의체 판결을 기초로 -

Abstract

The Supreme Court has recently abandoned its long-standing Motive theory on the temporal scope of criminal law. It laid down the principle that if a change in the law after a crime makes the act no longer constitute a crime or the sentence lighter, the new law must be applied in the defendant's favor by applying Article 1(2) of the Criminal Code, unless the legislator provides for a interim provision. The Court held that this principle applies even delegated legislation. However, in the case of a change in a law other than the penal code itself or a law authorized or delegated by it, a change in the criminal law perspective directly related to the punishment of the offense under the penal code is required. Furthermore, the Supreme Court held that the case of sunset law cannot be considered a change in law within the meaning of Article 1(2) of the Criminal Code. This is a very significant change that accepts the criticism of academics and ensures legal stability by ensuring the predictability of the offender from the perspective of the substantial rule of law. It is a groundbreaking change to abandon the unreasonableness of guessing the legislator's inner intentions ex post facto and propose a change in the criminal law perspective as a criterion for judgment. However, the Supreme Court's ruling also shows some regrets. This is the case with the standard of change in the perspective of the criminal law and the limitations of the interim provision that recognizes retroactive effect. In this article, we have examined the problems with the motive theory and the validity of its abolition from the perspective of the substantive rule of law principle and the time limit for sunset law and the Blanketstrafgesetz in relation to the scope of application of the change of Motive theory. And we pointed out that these issues may emerge as new issues in the future. The above shows that, although this judgment is significant, there is another reason to keep an eye on the Supreme Court's judgment in the future.