한국형법 개정의 올바른 방향 -형법총칙을 중심으로-

Abstract

Criminal law that was enacted in 1953, the middle of the war, has been amended about the small part. But the essential revision isn't still accomplished. Criminal law in 1953 gave top priority the stability of nation and society order maintenance which are not suitable for the today's society. Korea in 1950 was based on the agricultural economy and the rural community was majority. But today, korea turns to information and communication society, national life and cultural level developed to the high level which is essentially different in 1950. According to the social change, there was a request about the basic revision of criminal law in 1980's already and the revision work has been performed for 7 years under Ministry of Justice's support and Criminal law amendment was submitted to National Assembly in 1992. But the passage of National Assembly about criminal law amendment didn't accomplished because people opposed strongly the abolition of adultery that is a part of criminal law amendment in 1992. The strong request about the revision of criminal law in 2005 makes ministry of justice to comprise law advisory committee about revision of criminal law. The committee, which consists of 24 members, promoted revision of criminal law from June 2007. The partial criminal law amendment including the criminal law general rules and etc. was submitted to National Assembly at April 15th, in 2010. But as the session of the 18national assembly ended May 1992, criminal law amendment fell into disuse by the automatic. Nevertheless, the revision work was still going on and it came to a finish not only criminal law general rules but also criminal law particulars rules. Through these process, the committee tried to make criminal law amendment to the ideal criminal law that is matched for the constitutional principles such as rule of law and responsibility principles and meet the demand of modern criminal theory and criminal policy. but it is not easy to find out big change in the criminal law amendment excluding the actualization of fine, severity of some crime such as robbery resulting in injury which is not inappropriate. There is still problems as follows, the retention of the death penalty and detention, the change of terms about probation, the partial restriction of discretionary mitigation by judge, the aggravation for sexual offence, the abolition of crime subject to complaint and some special criminal law's inclusion in the criminal law general rules. The retention of the death penalty is contradictory to the ethics of nation. Discretionary mitigation by judge has to be restrictive admitted. The limit of imprisonment has to be 20 years as a rule. Total fine system has to be turned to day fine system. The accommodation for probation has to be abolished. The abolition of criminal law general rules about preparation and plot has to be abolished and preparation and plot is admitted restrictedly on serious crime. All regulations about offense aggravated by consequence has to be abolished.