법률의 변경과 법률의 시적 효력

Abstract

If it is a natural request of criminal justice for the sentence to apply the law with a light sentence for defendant, Article 1, Paragraph 2 of the Criminal Act is only a declarative and cautious provision as in Paragraph 1. As a result, it is the court's duty to apply a more advantageous law to the defendant by comparing the severity of the sentence when there is a change in the law, just as the constitution naturally applies the principle of action even if Article 1 (1) does not exist.
 However, in some cases, the law restricts the scope of the time effect of the law, which is called the temporary law. However, since the temporary law is not a request for criminal justice as above, the basic principle that the law with a light sentence for defendant is applied cannot be applied even if there are no special provisions in the criminal law. However, the temporary law also seems to have a change in the state of the law in that the law becomes ineffective at the time limit. For this reason, the Supreme Court did not distinguish between changes in laws and temporary laws.
 However, through the Supreme Court's ruling on December 22, 2022, 2020 Do 16420, the Supreme Court clearly distinguished the change of law from the temporary law, and clarified the view that Article 1 (2) of the Criminal Act is subject to “the change of law,” and the temporary law is not applicable. As a result, the previous wrong practice of not distinguishing between the opening and closing of the law and the temporary law has been corrected, but there is still controversy over the temporal effect of the temporary law. In this regard, there are opinions criticizing the recent attitude of the Supreme Court, but if the Supreme Court had judged the effect of the temporary law in the 2020 Do 16420 ruling, it would have to be criticized as “judicial activism.” This is because if the court interprets and engages in even the parts that were not problematic in the case, the judiciary is an active attitude to play the role of the legislature. And this clearly violates the principle of separation of powers.
 Nevertheless, in the analysis of the 2020 Do 16420 judgment, it is theoretically reasonable to deal with the temporary law in relation to the application of Article 1 (2) of the Criminal Act. This is because the problem of the temporal effect of the law due to changes in the law includes the temporary law. Therefore, first of all, the Supreme Court's attitude to the target judgment is analyzed, and after distinguishing the difference between the change of the law and the expiration of the law's effect, the criminal interpretation of temporary law is analyzed.