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Nullum Crimen, Nulla Poena Sine Lege in Korean Criminal Law

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Nullum Crimen, Nulla Poena Sine Lege in Korean Criminal Law Nullum Crimen, Nulla Poena Sine Lege in Korean Criminal Law Kuk Cho* Abstract The principle of nullum crimen, nulla poena sine lege is the most important principle of Korean criminal law. It is commonly understood as being composed of four sub-principles: lex certa, lex praevia, lex stricta and lex scripta. It was given lip service under the authoritarian regimes, but the military rulers never felt restricted by those in exercising the state power. After democratization, however, this principle has been actively pursued. Many legal scholars and civic organizations have argued that the task of criminal law is to protect citizens from the abuse of state authority as well as to fight against crimes. The legitimacy of a number of criminal law provisions in violation of this principle has been challenged in academic circles and in the courts. The principle of nullum crimen, nulla poena sine lege will play a crucial role in controlling and deterring the abuse of state authority in Korean society and freeing the criminal law from the legislation of moral norms. * The Author is an Associate Professor of Law, Seoul National University College of Law, Korea (email: [email protected]). He received an LL.B. in 1986 and an LL.M. in 1989 from Seoul National University College of Law; an LL.M. in 1995 and a J.S.D. in 1997 from the University of California at Berkeley School of Law; was a Visiting Scholar, University of Leeds Centre for Criminal Justice Studies, U.K. (1998); a Visiting Research Fellow; University of Oxford Centre for Socio-Legal Studies, U.K. (1998); a Visiting Scholar, Harvard-Yenching Institute (2005-2006). 147 Journal of Korean Law, Vol. 6, No.1, 2006 I. Introduction The principle of nullum crimen, nulla poena sine lege (literally, without law, there is neither a crime nor a punishment) is the most important principle of Korean criminal law. It is to place state authority under the control of law and protect the citizens from the arbitrary exercise of penal power. This principle is commonly understood as being composed of four sub-principles: lex certa, lex praevia, lex stricta and lex scripta. The principle has its own constitutional and legal grounds in the Constitution and the Penal Code. Article 12 (1) of the Constitution provides that no punishment or “protective security measure”1) shall be imposed without law,2) and Article 13 (1) of the Constitution stipulates that “No citizen shall be prosecuted for an act which does not constitute a crime under the Act in force at the time the act was committed.” Article 1 (1) of the Penal Code3) uses the same language found in Article 12 (1) of the Constitution. Under the authoritarian military rule, the illegitimate regimes made use of criminal law to oppress dissidents and control the people. Thus, rather than being viewed as a shield to protect citizens from crime, criminal law was seen as no more than an instrument to maintain the regime. Since democratization, however, the question whether the provisions of criminal law are against nullum crimen, nulla poena sine lege has been considered very seriously. This Article is to briefly review the principle of nullum crimen, nulla poena sine lege in Korean criminal law. 1) In Korean criminal law, there are two types of criminal sanctions: punishment and “protective security measures” (boancheobun or Maßnahmen in German). The Korean Constitution provides legal basis for this distinction, saying that no punishment or protective security disposition shall be imposed without law [The Constitution, § 12 (1)]. These two sanctions are distinguished in theory in that the first is imposed on those with the capability to be responsible for their past criminal conduct, while the second is used to rehabilitate criminals and protect society from any future crimes that non-rehabilitated criminals may commit. The second is prescribed mainly in special criminal acts. 2) The Korean Constitution [heonbeop] (Law No. 1, July 17, 1948, last revised on October 29, 1987, as Law No. 10), arts. 10. 3) The Korean Penal Code [hyeongbeop] (Law No. 293, September 18, 1953, last revised on January 20, 2004, as Law No. 7077), art. 1(1) 148 Nullum Crimen, Nulla Poena Sine Lege in Korean Criminal Law II. Lex Certa 1. Vague for Vagueness Lex certa means that the law should not be vague as to what kind of conduct is prohibited and what kinds of punishments shall be imposed. It is a Continental law version of the common law principle of “void for vagueness.”4) Based on lex certa, constitutional review of vague languages in criminal law has been vigorously pursued. For instance, Article 4 of the Family Ritual Standard Act5) was held unconstitutional by the Constitutional Court.6) The Act prohibited activities based on vanity in the family rituals, providing exculpatory condition that “the activities within the reasonable scope of the true meaning of the family rituals shall not be prohibited.”7) The Court held the concepts of “reasonable scope” and “true meaning” are not easy for people to understand what they exactly mean and do not provide people with clear standard how to behavior, thus are likely to be abused by law enforcement authority.8) Article 2-2 of the Protection of Minors Act unconstitutional for the language of “comics which are likely to foster obscenity or cruelty to minors or may cause urge of crime to minors” was held to be vague and consequently violate the principle of lex certa.9) The Supreme Court also held the language of “good public morals” in the Rules of Foreign Exchange Control unconstitutional.10) 2. Prohibition of Indeterminate Sentence Lex certa also requests that the kind and scope of criminal sanction be specifically provided and indeterminate sentence be prohibited. But indeterminate sentence may be allowed if maximum and minimum period of the sentence is determined (“relative 4) Connally v. General Construction Company, 269 U.S. 385 (1926). 5) Family Ritual Standard Act [kajeong euirye e kwanhan peopryul] (Law No. 4637, December 27, 1993). 6) Decision of October 15, 1998, Korean Constitutional Court, 98 HeonMa 168. 7) Family Ritual Standard Act, art. 4(Italics added) 8) Decision of October 15, 1998, Korean Constitutional Court, 98 HeonMa 168, at 3, Na. 9) Decision of February 28, 2002, Korean Constitutional Court, 99 HeonKa 8. 10) Decision of June 18, 1998, Korean Supreme Court, 97 Do 2231. 149 Journal of Korean Law, Vol. 6, No.1, 2006 indeterminate sentence”). For instance, the Medical Treatment and Custody Act provides when “medical treatment and custody” is given for those who have committed any offense in the state of mental handicap or narcotic, alcohol or other drug addiction,11) commitment to a medical treatment and custody facility shall not exceed fifteen years.12) The Juvenile Act provides in case where a juvenile commits a crime punishable by imprisonment of a limited term of two or more years, a sentence shall specify the maximum and minimum terms within the scope of such term of punishment; the maximum term shall not exceed ten years, and the minimum term shall not exceed five years.13) III. Lex Praevia 1. Prohibition of Ex Post Facto Laws Unfavorable to the Defendant Lex praevia is the principle that prohibits laws that are ex post facto, and is provided in Article 13(1) of the Constitution and Article 1(1) of the Penal Code. Article 1(1) provides: “The criminality and punishability of an act shall be determined by the law in effect at the time of the commission of that act.” Retroactive criminal laws destroy the trust of the people in existing laws. A notorious case of punishment by ex post facto laws is the case of Mr. Cho Yong-Soo, who was the president of a progressive newspaper, Minjok Ilbo. He was accused of and executed for the violation of the Special Act for Punishment of Special Crimes after the May 16 coup of 1961. The Special Act was legislated in June 22, 1961, and its appendix stated the Act shall be retroactively applicable for three years and six months before promulgation.14) Lex praevia is not applied when retroactive application of ex post facto law is favorable to the defendants. Article 1(2) provides: “When a law is changed after the 11) Medical Treatment and Custody Act [chiryokamho beop] (Law No. 7655, August4 , 2005), arts. 1, 2. 12) Id. art. 16(2). 13) Juvenile Act [sonyon peop] (Law No. 4929, July 24, 1958, last revised on January 15, 1995, as Law No. 4929), art. 60(1). 14) Special Act for Punishment of Special Crimes [teuksubeomchoe cheobeol e kwanhan teukbyeolbeop] (Law No. 633, June 22, 1961), appendix. 150 Nullum Crimen, Nulla Poena Sine Lege in Korean Criminal Law commission of a crime so that the act thereby no longer constitutes a crime under the new law, or the punishment therefore under the new law becomes less severe than under the previous law, the new law shall apply.”15) Article 1(3) also provides: “When a law is changed after the sentence for a crime committed under the previous law has become final and such act thereby no longer constitutes a crime, the execution of the punishment shall be remitted.”16) 2. The Scope of the Application of Lex Praevia 1) Criminal Procedure Lex praevia applies only to substantive criminal law, but not to rules regulating criminal procedures. In 1995, two retroactive laws were passed to overcome the statute of limitations which prevented the prosecution of former Presidents Chun Doo Hwan and Roh Tae Woo for leading a coup d’etat and killing many civilians in the Kwangju area in 1980.
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