통일을 대비한 남북한 형법 통합방향의 모색 - 최근 개정된 북한 형법을 중심으로 -

Abstract

North Korean Criminal Law is made up of different formats and contents against our things. The most important feature of this is that the use of criminal law as an instrument of power. Although the criminal law of all countries of the modern regime used as a tool to some extent, but it is unusual for usage to define the crime as a tool of power and system maintenance. However, North Korea has been set up by the one person dictatorship under the pretext of Juche idea advocated by Kim Il Sung, since then this trend did not change, so far, followed Kim Jeong-il regime and Kim Jeong-eun regime. Recently North Korean Criminal Law defines ‘Nulla poena sine lege’ and shows that the system rarely punished through the formalities of judicial process and subsequent proceedings and enforcement, but it is not a complete form and it remains the direction of the retroactive effect as it stands. Also, according to the information of various media, the condition of remaining same action that the punishment as the will of the highest authority is still unsatisfactory situation in ‘Nulla poena sine lege’ protection. On the other hand, inter-Korean relations are affected by the stream of political or international conditions, so the two Koreas must go to expand gradually the field of criminal justice as presented for rational treatment approach relating to inter-Korean criminal matters before achieving a unified Korea. And some laws and regulations including the Constitution of the Republic of Korea are stipulated that the area of North Korea is in our territory, it is revealed the dualistic attitude in the Supreme Court’s judicial precedents about a position of North Korea known as a anti-state group & the target of a mutual cooperation and the contradiction of relationship between the ‘National Security Act’ & ‘Inter-Korean Exchange and Cooperation Act’ as well. The quickest way to solve the above problem is that the way of reflection in a amendment of the Constitution under recent discussion, but the best way to prepare for the unity that can come suddenly at any point is found the legal system of East and West Germany prior to unification or the case of China-Taiwan, so it looks to be helpful as a precedent. Aforementioned above, it is necessary to standardize the traffic of inter-Korean residents and to handle a variety of legal issues in the form of a special law given to transitional nature, such as ‘the Draft Code of the Relations between the continental mainland China and Taiwan area’ and ‘Taiwan Relations Act’. Until we meet the unified Korea, this law will be a good way for comprehensive legislation to address all the legal issues. In the light of flow-on time, it may be difficult to fully recognize the opposite party system each other, but a way to accept some of the effects of North Korean laws regionally like a case of inter-local criminal law applied in inter-Germany relations based on their own respects for the fundamental system consciousness may be existed and other way to infer analogically from International Criminal Law for inter-Korean relations regarding as the relationship of countries may be existed.