Part 1. Introduction
The contents of this study are largely divided into four parts. The first part provides a brief introduction and an overview of this research. The second part is to analyze theories and practical guidelines of criminal legislation. The third part analyzes the current position of criminal legislation and suggests the regarding issues. The last part(forth part), as a proposal for the rational criminal legislation, proposes the basic framework to establish Criminal Legislative Evaluation System.
Part 2. Theories and practical legislative guidelines of criminal legislation
1. Criminal legislation raises the issues different from ordinary legislation.
Ordinary legislation prescribes rights and duties of individuals and institutions in the particular matters or areas. On the other side, criminal legislation is demanded to equip special forms and principles of legislation in that the criminal legislation should faithfully reflect the social requirement and punishment of crime. The uniqueness of criminal legislation can also be seen in the difference from other divisions of criminal law, e.g. criminal law dogmatics(legal dogmatics of criminal law), or criminal policy etc. Criminal legislation is a division of legislation, and, at the same time, has a position of independent division of law, because it systematizes the unique conditions and effects of criminal sanction ordinary legislation cannot notice.
2. The idea of democratic state of rule of law is realized through the Constitution today. Beyond the passive meaning that limits the exercise of criminal legislative power, principles formulated by the Constitution require to actively exercise criminal legislation consistent with the Constitution.
According to the theoretical point consulted with criminal law about the need of criminal legislation, we can analyze the conditions of criminal legislation accord to the Constitution. These conditions are developed with the decisions of Constitutional Court, and especially there are principle of responsibility, principle of equality, principle of proportionality, harmony with the empirical preconditions, principle of in dubio pro libertate, void for vagueness, systemized consistency and so on. As criminal legislation has the form accord to the Constitution, now we need to investigate the contents of criminal legislation, that is practical illegality which grounds punishability.
3. The Constitution article 37 is the basis for the state to make the criminal statues when necessary for national security, the maintenance of law and order or for public welfare, which entails the restriction of fundamental rights. This means that these three conditions are the "producer" to make the 'legal interest' or - to say more radically - are themselves the legal interests(=legislative purposes). However, constitutional justification requirements are not the reasons for restriction of fundamental rights (legislative purposes=legal interests), but the very principles of proportionality and principles that no essential aspect of the freedom or right shall be violated.
Therefore, principles of proportionality is required to change its position as a ground for the constitutional justification of criminal law and a practical guidelines for criminal legislation. That is, the sub-standards of principles of proportionality, e.g compatibility, minimum violation, and balance shall be refined to fit for the distinctiveness and ultima ratio of criminal law.
Part 3. Analysis of the current(existing) criminal legislation
1. This study reviewed 39,633 initiated bills from the 1st January, 1998 to 30th June 2014 posted on Agenda Information System of National Assembly.
This period is from former president Kim Dae-jung to current president Park Geun-hye. Of these bills, we sorted out the 5,541 bill related with the criminal law and analyzed so that we could examine the trend of criminal legislation.
What is remarkable in this criminal legislative trend analysis is that the number of bills related with the criminal law was increased dramatically, entering into the late 2000s (especially after 2007). Contrasting with the sudden rise, however, it seems that endorse rate is declined and the repeal rate is surging. In the respect that endorse rate means the need to regulate, urgency of punishment and qualitative perfection, and the repeal rate shows similarity·duplication of bills, it seems that this situation causes many problems.
2. The same legislative process used commonly in the civil or administrative legislation is adopted in the process of the criminal legislation too. This unification of the process is unavoidable to ensure the consistency(unity) in the process of legislation.
However, in the respect that the criminal legislation includes enforcement that carries direct violation on the fundamental rights, especially life(capital punishment), freedom(imprisonment) or property right(fine), the following problems arise: how can legitimacy on the form and content of criminal legislation be warranted in the united legislation; the warrant procedures of criminal legislation system. Another practical problem is that how can current legislative procedures examine the limitation on violation of human rights in each stage of legislation.
3. There are 4 issues on the current criminal legislation. First, special act on criminal law is excessively increasing. When the crime committed, we focus on the punishment of the individual offender, severe punishment, and insert of punishing clause on the administrative statute, rather than try to solve the fundamental problems of social system, which really makes the crime happened. Second, as a result of focusing only on the punishment of crime, nulla poena sine lege, especially many provisions in questions of ex post facto law(ban of retroactive legislation) was enacted and revised. Third, a severe punishment policy characterizes general trend of criminal legislation. It happened excessive increase of statutory punishment on particular crimes, making imbalance of statutory punishment of other crimes and reversion of values. Last, as capital punishment has been repealed internationally, it is problematic that there are so many provisions which amount to capital punishment in our society.
Part 4. Search for the framework of criminal legislative evaluation to ensure reasonability on criminal legislation in Korea.
1. If legislative evaluation is systematically implemented, this could serve to make the public trust the law by ensuring the substantive legitimacy of the law and the objectivity·scientific level·democratic level of legislation.
Legislative evaluation makes legislation more circumspect, as well as functions as a measures to guarantee the certain level of legislative quality by reviewing various impact of Acts ex ante·ex post and making intend of legislator fully realized. Legislative evaluation could be a important reference data, because it evaluates the intend of legislator and effectiveness with the objective standards.
We can also have legitimacy of legislative policy by examining precisely the demand of legislation and by having rational legislative rules function. In addition, through opening the reviewing process to the public, legislative evaluation could help legislator decide and make the comment or critique to it.
2. Criminal legislation could be grounded and limited only under the condition of legitimacy with the Constitution, So it would be the main standard of evaluation and the basis for legitimacy whether the process of legislation is accord to the Constitution and in what level call of the state of rule of law, democracy are embodied in the process of legislation. In this case, some principles the Constitutional Court uses as analytic tools for rules - principle of equality, principle of proportionality, void for vagueness and so on - become not only ex post judgement tool, but also an ex ante standard investigating the appropriateness and legitimacy.
Legislative evaluation is inevitably drawn from the duty of the legislator, and it is also an indispensible measures to fulfill the duty of legislator. Besides, the duty of observation on law is derived from the legislative duty on the Constitution, and especially criminal law is the sector in which the duty of legislator’s observation is remarkably important. With the finding on the basis of the observation duty, legislator should revise, repeal, re-enact the law under the observation duty, and as a result there would be the demand of ex post legislation evaluation.
3. France, Germany and Switzerland already institutionalized and implemented the legislative evaluation. There are differences among these states depending on the relationships between the government and the National Assembly.
Germany has government-led legislative evaluation by doing it autonomously in the legislative procedures of the federal government level. Switzerland has a national assembly-led legislative evaluation because right to call the evaluation is on the national assembly, as well as the items of evaluation is defined in the national assembly Act. These two states, Germany and Switzerland, have the similarity in that the transparency and credibility on the assessment is assured with the governments' support to the private (non-official) institutions. That is, in Germany, an institution of legislative evaluation in Graduate School of Administration of Speyer offers the result of the evaluation entrusted by the government. Also, Switzerland tries to guarantee the quality and the transparency of the result by implementing the legislative evaluation accord to the standard of Switzerland Evaluation Association which is a private academic association inviting outside experts with independence and experties to attend.
In France, bills are proposed with the legislative impact assessment to the national assembly, and national assembly can decide opening of this assessment.
Although not all statutes are subject to the opening, national assembly tries to reveal as widely as possible. In Germany, legislative impact assessment also need to be presented on the reason of the proposal. In Switzerland, legislative impact assessment is presented on the reason of the proposals when the bills are conveyed to the national assembly, and the result of assessment is commonly opened.
4. There must be the difficulties in making the effectiveness and the assessment as a matter of legislative evaluation, because these factors cannot be visualized with some indicators. Nevertheless, criminal legislative evaluation ensures the quality of legislation by recovering the principles of criminal legislation and sustaining systematic consistency destroyed by indiscreet criminal legislation. Also it could function as a guidelines of legislative procedures, with a unique methods of evaluation, to maintain supplementary, principles of proportionality, and systematic consistency.
Specific examples of criminal legislative evaluation are the legislative evaluations of General Provision of Revised Criminal Act and Juvenile Criminal Act in Switzerland. Comparing with them, our criminal legislative evaluation is required not only to get the effectiveness of criminal legislation, but also to maintain basic principles and systematic consistency. It also tries to discard or look for substitutes unnecessary or dead criminal regulation. These are the very aims of criminal legislative evaluation and the factors needed to be considered as assessment index.
In addition, evaluation scheme needs to be different depending on proposals of National Assemblyman and those of government, when reviewing the current procedures and methods of criminal legislation.
5. Statutory ground for the legislative evaluation must be prepared to introduce the criminal legislative evaluation. To maintain the evaluation objective and neutral, not influenced by the outside pressure, the evaluating institution is operated freely from the political power or the interest groups. Besides, in the settlement of standard and methods of criminal legislative evaluation, the standards to sort out the bills which will be under the evaluation need to be established. For this, we need to separate assessing procedures, informal evaluation and the formal evaluation.
There are differences on the evaluation standards between ex ante and the ex post legislation. Ex ante legislation focuses upon the necessity and the validity of criminal legislation, while ex post legislation concentrates on the effectiveness of implementing criminal law. However, it would be desirable for the both dimensions of evaluation to open the assessment to the public for the credibility.