General Theory of Criminal Law
Recommended Article : 【Introduction to Law】 Table of Contents for Introduction to Law
1. Overview
4. History
a. General Theory of Criminal Procedure Law
1. Overview
⑴ Definition 1. Narrow Sense of Criminal Law (Formal Meaning of Criminal Law)
① Refers to the criminal code enacted and promulgated under the name “Criminal Law”
② Structure of the Criminal Code
○ Part 1 General Provisions : Stipulates general principles commonly applicable to all crimes and penalties
○ Chapter 1 : Scope of Application of Criminal Law
○ Chapter 2 : Crimes
○ Chapter 3 : Penalties
○ Chapter 4 : Periods
○ Part 2 Specific Provisions : Stipulates individual crimes and their corresponding penalties
○ Can be classified into crimes against national interests, social interests, and individual interests
○ Composed of a total of 42 chapters
⑵ Definition 2. Broad Sense of Criminal Law (Substantive Meaning of Criminal Law)
① All legal provisions that stipulate crimes and criminal sanctions
② Type 1. Criminal Law
③ Type 2. Special Criminal Laws : Military Criminal Act, National Security Act, Act on the Aggravated Punishment of Specific Crimes, Act on the Aggravated Punishment of Specific Economic Crimes, Act on the Punishment of Violent Acts, Act on the Punishment of Sexual Crimes, etc.
④ Type 3. Administrative Criminal Laws : Mainly contain administrative content but define certain acts as crimes and impose penalties to achieve their purposes (e.g., Road Traffic Act, Food Sanitation Act)
⑶ Definition 3. Criminal Justice Law (Widest Meaning of Criminal Law)
① A general term for all penal regulations related to criminal cases including substantive criminal law, criminal procedure law, and penal execution law
⑷ Legal System Position of Criminal Law
① Domestic Law
② Public Law
③ Private Procedural Law : Applied in trials
④ Substantive Law
⑸ Normative Character of Criminal Law
① Hypothetical Norm : Hypothetically stipulates that a certain punishment is imposed as a legal effect on certain crimes
② Behavioral Norm & Judicial Norm : Serves as a guideline for citizens’ behavior and a rule of judgment for judges
③ Evaluative Norm & Decision-Making Norm : By stipulating punishment for crimes, evaluates such criminal acts as worthless and unlawful, and provides standards for decision-making that such acts should not be committed
⑹ Functions of Criminal Law
① Protective Function
○ Function of protecting legal interests and social-ethical value of behavior
○ Legal Interests : Interests or values of individuals and communities protected from infringement by criminal law (e.g., national and social safety, life, body, honor, freedom, and property of individuals)
② Guarantee Function
○ Magna Carta for Good Citizens : Clearly defines the limits of the state’s penal power to protect citizens’ freedom and rights from arbitrary punishment
○ Magna Carta for Criminals : Protects the human rights of not only ordinary citizens but also criminals
○ Based on the principle of nulla poena sine lege
③ Social Protection Function
○ Criminal law uses punishment or security measures to maintain and protect social order against crimes that violate the legal order
○ General Prevention Function
○ Through advance notice (deterrent threat) and execution of punishment (judgment and enforcement), acts to prevent the general public from committing crimes
○ Special Prevention Function
○ Aimed at the offender themselves, focuses on preventing recidivism
○ Mainstream approach is to re-socialize the criminal through education and rehabilitation
2. Characteristics
⑴ Criminal Sanctions
① Punishment
○ Penalizes past crimes through infliction of suffering
○ Types : Defines 9 types of punishment: death penalty, imprisonment, detention, loss of qualifications, suspension of qualifications, fine, minor imprisonment, minor fine, and confiscation (Article 41 of Criminal Law)
② Security Measures
○ Means to prevent future crimes; not necessarily involve suffering
○ Type 1. Treatment and Custody under Treatment and Custody Act
○ Applies to offenders not penalized or given reduced penalties due to mental/physical disability or drug addiction, placing them in treatment facilities
○ Type 2. Probation
○ Applies to those whose treatment and custody is nearly complete, allows them to live in society under guidance and supervision
○ Type 3. Security Supervision under Security Surveillance Act
○ Applies to those who committed crimes against national security and served a sentence of imprisonment or more but are still at risk of recidivism; under police supervision
○ Imposed by administrative agencies, not courts
③ Other Criminal Sanctions (Security Measures)
○ Protective disposition under Juvenile Act
○ Probation under Criminal Law
○ Community service order
○ Attendance order
○ Electronic monitoring under Act on Attachment of Location Tracking Devices to Specific Offenders
○ Public disclosure order under Sexual Violence Punishment Act
⑵ Supplementary Nature of Criminal Law
① Type 1. Ultima Ratio
○ Criminal sanctions should be used only as a last resort after exhausting civil or administrative sanctions
② Type 2. Principle of Proportionality
○ Even when using criminal sanctions, it should be done to the minimum necessary extent
○ Prohibits over-criminalization and excessive penalization
⑶ Principle of Legality
① Definition : Principle that crimes and penalties must be defined by written law (legality)
○ No crime or punishment without law
○ Highest principle of criminal law to prevent arbitrary expansion or abuse of penal power
② Statutory Grounds
○ Constitution Article 12(1) : No person shall be arrested, detained, searched, seized or interrogated except as provided by law
○ Constitution Article 13(1) : No citizen shall be prosecuted for an act not defined as a crime by the law in effect at the time of the act; no one shall be punished more than once for the same offense
○ Criminal Law Article 1(1) : Formation of crime and punishment shall be governed by the law in effect at the time of the act
③ Content 1. Prohibition of Customary Criminal Law (Statutory Principle)
○ Crimes and punishments must be stipulated by formal laws enacted by the National Assembly
○ (Note) Unlike civil law, customary law is not recognized as a source of criminal law
○ Limitations on Delegated Legislation
○ Due to complexity of social phenomena, it is impractical to revise laws constantly; hence delegation is sometimes necessary
○ Court Decisions : Delegated legislation allowed only when strictly necessary and must clearly define punishable acts, types and range of punishment; comprehensive delegation prohibited
○ Permissibility of Favorable Customary Law
○ The ban on customary law applies only when it disadvantages the offender; favorable customary law is allowed
④ Content 2. Principle of Clarity
○ Crime elements and criminal sanctions must be clearly defined to prevent arbitrary judicial interpretation
○ Absolute Ban on Indeterminate Sentencing : Penalties must specify a definite duration; indefinite sentencing is not allowed
⑤ Content 3. Prohibition of Retroactivity (Non-retroactivity of Penal Law)
○ Crimes and punishments must be based on the law at the time of the act; no retroactive legislation
○ Scope of Application
○ Retroactivity allowed if new law is more favorable to the defendant (Criminal Law Article 1(2), (3))
○ Retroactivity in Security Measures (Case Law)
○ Criminal Procedure Law not subject to retroactivity ban (common view, case law)
○ Change in case law not subject to retroactivity ban (common view, case law)
○ Transitional provisions excluding new law may be allowed when relaxing punishment (common view, case law)
⑥ Content 4. Prohibition of Analogy
○ Interpretation of criminal law must follow literal meaning of statutes; no arbitrary interpretation
○ Analogy: Applying legal provisions by similarity when a situation is not directly regulated
○ Ban applies only to analogies unfavorable to the defendant; favorable analogies allowed
⑦ Content 5. Principle of Appropriateness
○ The substantive content of criminal statutes must be just and reasonable
○ Provisions violating appropriateness also violate constitutional principles of proportionality and prohibition of excess
○ Calls for realization of substantive legality beyond formal statutory legality
3. Effectiveness
⑴ Temporal Scope of Application
① Type 1. Principle of Law at Time of Act : Law at time of act applies
○ Law in force at time of act continues to be effective even if repealed later
○ Criminal Law Article 1(1) : Crime and punishment governed by law at time of act
○ Time of act : Refers to “completion of criminal act”
○ If law changes during ongoing act, apply new law
② Type 2. Principle of Law at Time of Judgment : Law at time of judgment applies
○ Retroactivity allowed if law comes into force after act but before judgment
○ Criminal Law Article 1(2) : If post-crime law change results in no crime or lighter punishment, apply new law
○ Criminal Law Article 1(3) : If post-judgment law change means no crime, exempt from punishment
○ If new law favors defendant, apply it retroactively
⑵ Territorial and Personal Scope of Application
① Type 1. Territorial Principle
○ Law applies to crimes committed within national territory, regardless of nationality
○ Criminal Law Article 2 : Applies to both citizens and foreigners who commit crimes in Korea
○ “Crime committed in Korea” includes either conduct or result occurring within territory
② Type 2. Nationality Principle
○ Law applies to citizens regardless of where crime was committed
○ Criminal Law Article 3 : Applies to citizens committing crimes outside Korea
③ Type 3. Protective Principle
○ Law applies to crimes committed abroad by foreigners against Korea or its nationals (Articles 5, 6)
④ Type 4. Universal Principle
○ Law applies to crimes committed by foreigners abroad against other countries or nationals if it’s a crime against humanity or has global impact (e.g., genocide, terrorism, drug crimes)
○ Crimes like abduction and human trafficking (Article 296-2)
⑶ Substantive Scope of Application
① Criminal law punishes only intentional acts, not negligence
4. History**
Table. 1. History of Criminal Law
Input: 2023.11.29 00:20