형법대전(刑法大典)의 내용상 특징 - 적용범위와 죄형법정주의를 중심으로 -

Abstract

≪Hyeongbeob Daejeon/刑法大典≫ enacted 1905 was the first penal code with a few modern system in Korea, even though it accepted provisons of ≪the Ming Code/大明律≫ substantially. ≪Hyeongbeob Daejeon/刑法大典≫ did not discard too concrete and detailed provisions as a prescribing way of a crime because this code accepted system and contents of ≪the Ming Code/大明律≫ in many ways. As fixed sentence by each provision permitted few discretion of judge, in a good many of cases it was difficult to rule reasonable sentence related illegality and responsibility of crime. To solve these systematic problems of ≪Hyeongbeob Daejeon/刑法大典≫, the Code adopted ≪In-ryul-bi-bu/引律比附≫ that enabled to draw an analogy among similar cases. However, permitting interpretation by analogical inference what was called ≪In-ryul-bi-bu/引律比附≫ was apprehended that the judge punished arbitrarily, involved unacceptably problem with the principle of criminal responsibility. For these reasons, ≪Hyeongbeob Daejeon/刑法大典≫ imposed the following three types of restrictions about permitting ≪In-ryul-bi-bu/引律比附≫. First, the crimes to be imposed capital punishment did not permit ≪In-ryul- bi-bu/引律比附≫. Second, it was impossible that for judge absolutely applied ≪In-ryul-bi-bu/ 引律比附≫, judge had to ascertain no accurate provision for the case, ask superior authority the question of whether it's all right to apply a suitable- looking provision, and arrange at superior authority's instruction. Third, judge had to be punished when he or she arbitrarily applied ≪In- ryul-bi-bu/引律比附≫ for the act was the distortion of law. Consequently, we should not condemn the criminal ≪In-ryul-bi-bu/引律比附≫ unconditionally from the modern principle of “nulla poena sine lege”. Although the principle of “nulla poena sine lege” is being adhered to a certain degree in terms of Merkmal, a balanced sentencing has not been completely deciding in every case between crime and penalty. We have seen many times that sentencing could be came down by an individual judge's viewpoint.