The integration of criminal laws during the German re-unification seemed to be completed on 3 March 1990 with the extension of the criminal law which was, at that time, only effective in the Federal Republic of Germany (FRG, West Germany) to the German Democratic Republic (GDR, East Germany), except for some provisions that were effective only for a limited period of time in accordance with the Unification Treaty.The criminal law of the GDR, therefore, ceased to exist. However, this approach faced criticism that a “historic chance” brought by the German re-unification to create a new criminal law that governs the entire Germany was missed. Some further pointed out that, due to the excitement for the re-unification and narrow perspectives that only focus on Germany, the West German legal system “swept” the East Germany. Consequently, “creative elements” of the criminal law of the GDR were mostly not taken into account and “those worth preservation even after the re-unification” were ignored in the process of such a unilateral re-unification.
Regarding this, a possible objection is that the political system of the GDR was dictatorship and people’s fundamental rights, e.g. freedom of expression and freedom of assembly, were systematically infringed upon by the criminal law and criminal justice institutions. It could therefore be argued that the criminal law was no more than just a tool for the communist leadership to suppress people and it was in principle impossible to find “creative elements.” There is no doubt that the dictatorship of the Socialist Unity Party of Germany (SED) violated human dignity and that the criminal law was used as a main tool for the dictatorship.
Nevertheless, this does not exclude the fact that criminal law of the GDR, in particular its elements, met the requirements of the rule of law and therefore were acceptable to a law-governed country. The revision of East German criminal law pursuant to the criminal code in 1968 was regarded in West Germany as “a modern and progressive legal reform that cut off the old and tied hair.” The then Justice Mister, Gustav Heinemann, also expressed his opinion that the criminal code of East Germany had many differences from the reform bill of criminal code of the FRD, but still the two shared similarities at the same time.
On the other hand, given that criminal laws of the two Germanys were based on the same criminal code until 1968, there is also a view that it could have been an option to put the legal systems of the two Germanys, i.e. “materials”, into the same pot of the legal system of the unified Germany.
Against this backdrop, this study, commemorating the 25th anniversary of the German re-unification, analyses the integration of criminal law and criminal justice during and after the re-unification in an attempt to widen the perspectives for integration of criminal laws of North and South Korea.
First, Part Two analyses the integration of criminal laws for the unified Germany by conducting research on the substantive criminal law of East Germany. It also discusses what constitutional options were available for the German re-unification and possible ways to integrate criminal laws. By comparing general provisions and particulars of the criminal code of East Germany with those of West Germany, it is reviewed what elements
of the criminal law of East Germany could have been positively considered for the integration of criminal laws. This comparison mainly focuses on the general provisions of criminal law and takes into account only some of the particulars that are deemed to be worth such comparison. Based on this, Part Three analyses issues on the integration of criminal laws of the two Koreas taking into account the suggestions from the German case.
Regarding criminal procedures, Part Four discusses the integration of criminal justice systems, and Part Five, criminal justice procedures. As done above for the integration of substantive criminal laws, the process of integrating procedural laws during the German re-unification is analysed and it is also reviewed what lessons can be learned for the Korean re-unification. In particular, regarding criminal justice procedures, an analysis is
done mainly on special procedures to deal with minor crimes and juvenile cases through the “Social Court” system of the East Germany, which has been an issue of interest in the East German academia before the German re-unification. This consequently leads to identifying the significance of the integration of criminal justice.
The Unification Treaty, which served as a basis for the integration of criminal laws for the unified Germany, was no more than an extension of the criminal law of the FRD to the territory of the GDR. Other options for legal integration were used only in exceptional cases. Questions regarding whether there existed elements that could be accepted, or provide “legal-political stimulation at least, to the criminal law of the FRD were mostly not answered. This study compares key parts of the criminal code of East Germany with those of West Germany to find out to what extend the East German criminal law could have been accepted or whether it had a potential to serve as a model for reform.
In compliance with such analysis, positively uated ideas of East Germany were examined and elements that were exceptionally incorporated into the Unification Treaty, e.g. those regarding artificial abortion, criminal law protection against soil pollution, and exclusion of the period of preion for the prosecution regarding crimes under the international law, are envisaged in new provisions.
In some cases, a more comprehensive acceptance could have been made in, among others, the area of international criminal law where the FRD was lagging behind at the time of the fall of the Berlin Wall. Other elements (for example, fraud or murder) were expressed in a clearer and up-to-date manner in the criminal code of the GDR. In addition, the deletion of provisions that are rooted in Nazi legal concepts should also be emphasized as a positive aspect.
The criminal code of the GDR, as a whole, stands out in that more efforts were made to make a clear and consistent system compared to that of the FRD. This was possible because the political leadership wanted a criminal law which was understandable and people-friendly. This intention is best illustrated in the fact that provisions on legal definitions were set forth in both general provisions and particulars of the criminal code
and elements were arranged in an organized and consistent way.
Notwithstanding this, however, it should not be ignored that criminal law of the GDR was used as a tool for ideological education. Any part of the East German criminal law was not free from ideology. The aforementioned positively uated ideas were, in fact, always policy- and ideology-oriented. This means that criminal law of South Korea should be extended to North Korea, and that fundamental concepts of the constitution and criminal law of South Korea should also be maintained.
One basic concept at issue is the principle of quilt (Schuldprinzip) of criminal law, which is held up by the rule of law and liberalism. The principle is complied with through nulla poena sine lege, a representation of the rule of law in criminal law. These principles should also apply to the integration of particulars of criminal law. This is because the rule of law is based on the system of liberal democracy which guarantees people’s
fundamental rights.
Despite some creative parts of North Korea’s criminal sanctions (criminal and administrative punishment), they are in many cases executed in violation of the rule of law due to the application of preventive criminal law focused on the socialist hierarchy of the North Korea’s criminal law. The nulla poena sine lege, principle of guilt, and due process are all ignored. Consequently, it is likely that many of criminal sanctions were carried out in an arbitrary way for political purposes of the Workers’ Party of Korea.Responsibilities are invoked, but they are not properly taken into consideration. Thus, excessive criminal sanctions are frequently imposed for ideological purposes. It is not too much to say that the common issue for the integration of criminal laws and that of criminal sanctions is to remove ideological elements from criminal law of the North.
The integration of German criminal laws was focused on the system of West Germany, without adequately considering situations in East Germany. Hence, a gap exists between the law and reality. When criminal laws of the two Koreas are integrated by extending the criminal law system of the South to the North, attention must be paid to problems that may arise.
Although the integration of criminal justice systems of the two Germanys was carried out focusing on the system of West Germany, it went through certain procedures in accordance with mutual agreement between East and West Germany. This suggests that the integration of Korean criminal justice systems should also follow suit. Re-unification, in whatever form, should be accomplished in a peaceful manner through agreement as
shown in the German case. This requires that a Reunification Agreement between the South and North be concluded and implemented. The integration of criminal justice systems of the two Koreas should be made within the framework of such Agreement.
The German case shows that the re-unification of the two Koreas, which may be done quickly, should be prepared for in advance. For the integration of criminal justice systems of the North and South after the re-unification, it is first necessary to find ways to help North Korea’s criminal justice system develop into a democratic one that respects human rights so that it can be incorporated into the integrated system of the two Koreas. Secondly, it is needed to consider implementing the two systems separately on a temporary basis, which however requires legal grounds. Given some complicated issues including the possibility of utilising North Korea’s legal system, application of North Korea’s law, and recognition of effects of legal actions taken by North Korea’s legal authorities, North Korea may be designated as a special administrative zone and governed separately on a temporary basis. Nevertheless, it is appropriate that criminal justice systems of the two Koreas be integrated without being included in such a temporary approach considering the norms and realities.
In relation to the integration of criminal justice systems and institutions, it is expected that transitional justice, a much-discussed issue in international fora, will become an important subject. Re-unification and integration should be carried out gradually in a way that allows the transitional justice to be applied.
The Unified Germany accepted provisions of the criminal law of the GDR concerning minor crimes. and simplified procedures to handle minor crimes were an issue to be sorted out to both East and West Germany. Even though such a crime may be considered minor in nature, entire damage it creates cannot be ignored given the frequency of its occurrence. East Germany established Social Courts to deal with these cases. Some argued that the social court system should be considered and introduced to the unified Germany as well. Social Courts, which lie outside the existing legal system, may face many objections. However, it is worth noting that the German society after the re-unification focuses on the system’s functions and supports the actual benefits of introducing it.
The same applies to the case of juvenile criminal justice. The two Germanys compared their juvenile court law systems and made a revised law of the unified Germany not by just discarding the system of East Germany but by analysing good and bad aspects of both systems. This is because the socialist system to realize an ideal model for juveniles could be used as a meaningful tool to deal with juvenile cases even though it used to be abused for social control. Furthermore, the law of the unified Germany also contained many provisions based on the same reasoning.
As discussed above, the legal system of North Korea is not a socialist legal system but a dictatorship based on the succession of powers. Such a legal system cannot perform a proper function in a democratic political system. Of course, an important purpose of the legal system of the GDR, as a dictatorship, was to maintain the state power and suppress any social resistance. Nevertheless, there was no power succession in the GDR and there existed perception that it is necessary to improve people’s lives through economic development.
A unified Korea may take into consideration some of the North’s criminal justice systems which may be accepted to North Korean people and applied independently of the dictatorship. A case in point can be those for minor crimes or juvenile cases, which can be handled ly without going through formal criminal procedures. This is because, although those systems were influenced by the dictatorship of the North, the original intentions and purposes of the systems can be applied without being influenced by the political system.
The GDR also focused on the establishment and maintenance of a legal system to maintain its socialist system and power as North Korea did. In many cases, purposes that are advocated on the surface by the criminal law of a socialist regime are different from those that are actually pursued. The former usually contains creativeness of the system, but they are often transformed into political or ideological ones while being implemented. It can be said that no socialist legal system is free from this, because socialist revolutions and classism are openly advocated and considered as the spirit of every system.
Unless we unveil the political and ideological curtain and look into the systems, we can take nothing from the criminal laws or criminal justice systems of East Germany and North Korea. However, it should be at the same time considered that re-unification of the two Koreas and integration of criminal justice systems are both all about the people, and that every system could have some degree of significance for the people who have lived for tens of years, or for more than half a century, under the system. This makes it necessary to devise a legal system for re-unification and integration which is creative and respects people with the emphasis on those systems that we find meaningful. In this regard, this study which compares criminal laws of East and West Germany and those of North and South Korea will serve as a meaningful attempt and first step towards such an approach.