죄형법정주의와 그의 적들

Abstract

‘nullum crimen, nulla poena sine lege’(=legality principle) is a constitutional principle obligated to the state as a limiting principle of the criminal law. Accordingly, the court, which is the last bastion of human rights, is also obliged to comply with the legality principle. The purpose of this article is to reveal violations of legality principle by the Supreme Court, which interpret the law ultimately in order to applied to actual cases, The Supreme Court does not satisfy the specification request by using more abstract language than the abstract language of the law or by including the abstract terms of general provisions to be interpreted in the interpretation formula. In addition, the Supreme Court makes the legal decision-making process ‘black box’ by injecting a variety of heterogeneous considerations into the subsumption judgment in the name of comprehensive judgment. The Supreme Court also sometimes renders judgments criticized as being analogous because it does not properly observe the limits of possible meaning of legal texts, and sometimes uses legality principle as a means to justify a preemptive conclusion. Furthermore, under the premise of reducing the principle of prohibition of retrospective to the principle of non-retrospective punishment, the Supreme Court also excludes numerous security measures under the constitutional control of punishment from the application of the principle of prohibition of retrospective. As long as the Supreme Court continues to manage the authority to punishment through judgments that violate, relativize, and reduce the principle of criminal justice, civil liberties are outside the constitutional control. If science of criminal law, the fourth power, fails to prevent the Supreme Court's internal gunfire toward the legality principle, then science of criminal law will have no choice but to be classified as an enemy of criminal legality principle and freedom.