형법 제1조 제2항에 관한 판례 소고

• 영문명: A Study on the Cases under Paragraph 2 of Article 1 of Criminal Act
• 발행기관: 경희법학연구소
• 저자명: 신만성(Shin, Man-Sung)
• 간행물 정보: 『경희법학』제42권 제2호, 373~398쪽, 전체 26쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2007.06.30

영문 초록

There have necessarily been changes in acts, ordinances, regulations, bulletins, and guidelines according to social changes. These overall changes in statutes give rise to the problems of diversities in deciding whether the committer should be punished or not. We can classify the occasions of changes in statutes into three groups: when the new statutes, having not been effective at the time when an act was committed, are established; when the statutes at the time when an act was committed are abolished; when the statutes at the time when an act was committed are changed, and accordingly the gravity of punishment is changed. Although previous crimes were not punishable under old statutes but are punishable under new statutes when the new statutes, having not been effective at the time when an act was committed, are established, it is a natural consequence that the committer should not be punished by the ex post facto law according to the Nullum Crimen, Nulla Poena Sine Lege Praevia; Change of Precedent and Non-retroactivity Principle and the principle of the statutes at the time when an act was committed as contents of Grundsatz nulla poem sine lege” When the statutes at the time when an act was committed are abolished, it seems natural that the committers should not be punished because no more legal ground for punishment exists. Nonetheless if the statute was already abolished, there are the occasions when the committers should be punished, that is, the occasions of proactive effect of the abolished statutes. This problem relates just to the proactive effect of the temporary statutes. When the statutes at the time when an act was committed is changed and accordingly the gravity of punishment is changed, one should be punished under the new statutes which is lessened in punishment compared to old statutes according to lex posterior derogat priori (Criminal Act Paragraph 2 of Article 1). As above, in relation with the temporal scope of the criminal law, the problem arises whether the statutes at the time when the trial is held or the statutes at the time when an act was committed should be applied when the criminal law is changed in the period between both of them. The paragraph 1 of article 1 of Criminal Act proclaims the principle of the statutes at the time when an act was committed or old statutes providing The constitution and punishment of a crime shall be in accord with the statutes at the time when it was committed , while the paragraph 2 declares exceptionally the principle of the statutes at the time when the trial is held or new statutes providing When an act does not constitute a crime or the punishment for it comes to be lighter than old statutes following the change of statutes after committment of the crime, they shall be in accord with the statutes at the time when a trial takes place. On the proactive effect of the temporary statutes, there are competing theories such as positive stance, negative stance, and compromising stance by motive. Our Supreme Court, taking the compromising stance, admits the proactive effect when the statutes were changed in accordance with the facts, but rejects the proactive effect when the statutes were changed in accordance with the legal opinions. As I showed above, since the criteria for the distinction whether a case is relevant to the change in facts or to the change in legal opinions are ambiguous, I think it is reasonable that the admission of the proactive effect should be clarified by means of establishing the interim provisions. Otherwise it should be denied according to Grundsatz nulla poem sine lege.

목차

Ⅰ. 서 론

Ⅱ. 형법 제1조 제2항과 限時法과의 관계

Ⅲ. 형법 제1조 제2항에 관한 판례 검토

Ⅳ. 관련문제

Ⅴ. 결 어

키워드

한시법 추급효 죄형법정주의 경과규정 행위시법주의 재판시법주의 동기설 temporary statute proactive effect Grundsatz nulla poem sine lege interim provision the principle of the statutes at the time when an act was committed the principle of the statutes at the time when the trial is held stance by motive.