형법 제1조 제2항의 적용범위에 대한 고찰

Abstract

Korean supreme court’s judgement, 2020do16420 abandoned the conventional theory of motivation in relation to the interpretation of Article 1 (2) of the Criminal Act, and instead presented a new standard of “change in the perspective of criminal law”, distinguishing between changes in laws directly related to the punishment of the penal law and changes in laws that indirectly affect the punishment of the penal law. But, Article 1 (2) of the Criminal Act does not limit the scope of laws that change the criminal constituent requirements by stipulating, “If the act does not constitute a crime or the sentence becomes lighter than the old law due to a change in the law after the crime, the new law shall apply”. So, if a change in one law affects the punishment of the penal law, that is, the establishment and punishment of the crime, it is reasonable to regard it as a change in the laws of Article 1 (2) of the Criminal Act, regardless of whether it has a direct impact or not. To be specific, in addition to changes in the authorized or delegated laws, which are subordinate laws of the penal laws, it is reasonable to regard Changes in supplementary norms that affect the punishment of the penal laws by lending the conceptual elements of the criminal constituent requirements and Changes in laws affecting the punishment of the penal laws by stipulating contents contradictory to the penal laws as changes in the laws of Article 1 (2) of the Criminal Act.