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Reform and Development of Korean Criminal Law

  • DONG-A LAW REVIEW
  • 2007, (39), pp.105-128
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

HOH ILTAE 1

1동아대학교

Candidate

ABSTRACT

As more than 50 years have passed since the criminal law legislation in 1953, its status as a fundamental law has been degraded due to too many special criminal laws. These special criminal laws with too severe penalties put liability of the criminal law in the shade and deteriorate its characteristic as the last supplementary means. Some measures are being come up with to make more effective resocialization program and better community treatment system because criticism is raised that the existing penalties have little effect on convicts. To solve these problems, our hands-on experience, other countries' experience and scholar's opinion should be reflected enough. The first change to be made in the Korean criminal law is the abolishment of the death penalty. Second, all special criminal laws should be abolished so that a sentence should be passed only according to the criminal law. But, an exceptional special criminal law should be enacted only for the crimes which should not be treated by the sole criminal law. Third, severe penalties of special criminal laws and of the heavy penalty-oriented criminal law should be reduced to be fit for liability, which is proved well by the tendency in courts that excessive martinetism turns into paternalism. It is noticeable that the lighter a penalty is, the higher its influence is. In Scandinavian countries, light penalties improve influence of penalties. The upper limit of sentences the court can pass controls the court's discretion to examine an offense. Fourth, the existing life imprisonment cannot be the alternative of the death penalty. The absolute life imprisonment and the existing life imprisonment should co-exist so that only the criminals subject to death penalty should be sentenced to the former. The hard labor difference between imprisonment and confinement should be eliminated. It is a big progress that fine and detention are to be abolished. Fifth, the day-fine system should be introduced. Sixth, the requisites for disqualification and lapsed probation should be improved to prevent unfair effect of law. Seventh, the wrong gap between imprisonment and probation should be eliminated. Eighth, the defamation sentence should not be categorized into the general type of penalties but it is enough that just the corresponding law prescribes it. Ninth, the community treatment system should be improved. Tenth, the criminal law should intervene only when the society defense to maintain the social order is impossible. Therefore, the illegal activities including administrative law violation, from which the society can be defended through other means, should not be considered a crime. Although penalties are the easy means for the social defense, their intervention should be always used as the last means to resort. The trend of new crimes should be observed closely and their intervention should be restrained as much as possible even if they are necessary. Only when it is unavoidable, new crimes can be the subject of penalties.

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