1. Unified Criminal Law Research Society for a Draft Unified Criminal Law (2017)

The subject of this research, which is the third-year research project of [A Comprehensive Research of Criminal Policy and Criminal Justice in the Era of Unification] is “Theory and Policy of United Criminal Law(draft).” This research has been planned to lay the foundation to create a unified criminal law after the unification of Korea, and to conduct a theoretical and systematic review of Korean criminal law with the ultimate goal of entirely revising it given the fact that it has never gone through a complete reform during the past sixty-five years since its enactment.
To this end, the Unified Criminal Law Research Society (2017) was formed, whose members include two research fellows from KIC and researchers recommended by Korea Criminal Law Association, modelling on Alternative Criminal Law Research Society (Alternativkreis) that has made a huge contribution to developing German criminal law.

2. Unified Criminal Law as Civil Criminal Law in the Era of Unification

The Constitutional Court has proclaimed characters of constitutional men as “interactive relationship between individuals and the community,” “views of life and society of their own decision,” “self-determination,” “self-responsibility,” “creative and mature individuals,” and “democratic citizens.” Out of these characters, the concepts of “human autonomy” and “human responsibility” are inferred, and they are based on the recognition of “personal independence of human beings” or “human integrity,” which should form the foundation of a unified criminal law in the era of unification.
On the same token, the criminal law amendment bill of 2011 suggested “realisation of the constitutional spirit regarding ensuring fundamental rights” as its basic direction. The 「Draft Unified Criminal Law」 also aims at the same goal, hence an enhanced function of guaranteeing freedom.
The criminal law of Korea is described as being in “a deluge of special criminal law,” which showcases a systematic problem that special criminal laws (exceptional laws) apply more often than general criminal law (principled law). Above all, special criminal laws are still criticised for being based on allopathy and punitivism. Against this backdrop, the Draft Unified Criminal Law has been drawn up for the purpose of correcting the criminal law system in whole that has been distorted by special criminal laws and enhancing the spirit of the constitution.

3. Main Features of General Provisions of Draft Unified Criminal Law

Main features of general provisions of the Draft Unified Criminal Law are summarised as below.
First, the principle of “nulla poena sine lege,” the principle of legality, is specifically provided in Article 1 of the Draft Unified Criminal Law, which well displays the constitutional spirit of guaranteeing fundamental rights.
Second, a criminal sanction system based on dualism has been completed. In Chapter 3 (Punishment), provisions on aggravated punishment for recidivism have been omitted, while Chapter 4 (measures of rehabilitation) has been created incorporating measures of rehabilitation in the penal code.
Third, capital punishment has been abolished, and types of punishment have been simplified. Although South Korea is an abolitionist in practice where the death penalty has never been executed since December 30, 1997, the punishment still exists in the current law and last revision bill. Capital punishment is inconsistent with integrity of men under the Constitution and is not justified as a national punishment, therefore its abolishment is one of those key factors that the modernization of criminal law in a manner that corresponds to a civilized country takes. The varied types of punishment have been simplified as imprisonment and monetary punishment to enhance the effectiveness and preventive effect of criminal law.
Forth, the period of imprisonment has been modified to make it more reasonable. The current period of imprisonment under criminal law is relatively too long to be found in comparative law. Besides, the discretionary mitigation, which is an arbitrary mitigation, provided for in criminal law is likely to distort the imprisonment period. The Draft Unified Criminal Law therefore sets forth the maximum imprisonment period as twenty years, and that for an aggravated punishment as thirty years.
Fifth, the day-fine system has been introduced. As discussed above, types of punishment have been simplified increasing the importance of monetary punishment. The day fine system has been suggested in order to guarantee the penal effect of monetary punishment.
Sixth, sentencing has been rationalized based on the principle of responsibility (Schuldprinzip). It has been proclaimed that the principle of responsibility - no punishment without fault (keine Strafe ohne Schuld nulla poena sine culpa) - is the basic principle of sentencing, which sets a limit to punishment.
Seventh, the Draft Unified Criminal Law has completely repealed the discretionary mitigation, which aims at rationalizing sentencing through judges. However, it is problematic that the meaning of Article 53 of the current criminal law is not clear. If necessary, it would be a better idea to provide that reasons be specified as a constituent element.
Eighth, measures of rehabilitation have been incorporated in the penal code.
The Draft Unified Criminal Law includes a new Chapter that provides for key the measures of rehabilitation that are set forth in special laws, completing the dualist criminal sanction system. At the same time, the Draft also specifies the principle of proportionality, which will provide the ground for and impose a limit to the measures of rehabilitation.

4. Main Features of Individual Provisions of Draft Unified Criminal Law

Main features of individual provisions of the Draft Unified Criminal Law are as below.
First, individual provisions of the Draft Unified Criminal Law have suggested a comprehensive reorganization. This represents a stark contradiction to the current criminal law, under which national legal interest, social legal interest, and individual legal interest are provided for in this order, while they are provided for in reverse order under the Draft Unified Criminal Law. This is not just a matter of formality, but reflection of the characters of constitutional men and respect for fundamental rights. In addition, it should also be taken into account that criminal law of Korea is modelling at the Japanese Draft for Revising Criminal Law. Provisions on crimes concerning explosives and coercion have been moved to other places considering the interests to be protected.
Second, special criminal laws have been incorporated into the penal code. As mentioned above, the issue concerning such laws should not be left unchecked any longer. This is why special criminal laws have been inserted into the individual provisions of the Unified Criminal Law. To robbery, not only the individual provisions but also the Punishment of Violence, etc. Act, Act on the Aggravated Punishment, etc. of Specific Crimes, Act on Special Cases Concerning the Punishment of Specific Violent Crimes, and Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes apply. The same applies to fraud, to which the individual provisions as well as the Act on the Aggravated Punishment, etc. of Specific Economic Crimes, Special Act on the Prevention of Loss Caused by Telecommunications-Based Financial Fraud and Refund for Loss, Special Act on Prevention of Insurance Fraud, and Subsidy Management Act apply. These varied special laws have been integrated in the Draft Unified Criminal Law. Accordingly, the individual provisions of the Draft Unified Criminal Law resolve the aforementioned problems and also require that, if necessary, they be revised.
Third, types of criminal act have been reflected in constituent elements and statutory punishment. Criminal law strictly distinguishes between intention and negligence. However, for instance, there exist individual provisions that provide the same punishment without such distinction, e.g. punishment for a bodily injury and bodily injury by negligence. This means that the same statutory punishment will be applicable for a case where a robber intentionally inflicts a bodily injury and where a robber causes a bodily injury by negligence. Considering that the meaning of a term “at night” is not clear, crimes described by using the term have been deleted. Besides, types of criminal act have also been taken into account for crimes concerning property or drugs.
Forth, consequentially aggravated crimes have been excluded as much as possible. The issue regarding such crimes have continuously been a source of doubt regarding its legitimacy in the modern criminal law study, and such crimes lead to excessively heavy punishment. However, given the characteristics of crime of inflicting a bodily injury, the consequentially aggravated crimes for death resulting from bodily injury and aggravated bodily injury have been kept.
Fifth, the Draft Unified Criminal Law has modified provisions with vague language so that they can be clearly interpreted. A constituent element of a “special” crime, “the threat of collective force,” has been changed to “jointly by two or more persons.” Terms such as “minors,” “children,” and “juveniles” used to describe crimes of rape or indecent acts under the current law have been unified as “minors.” For crimes concerning property, new provisions have been inserted regarding energy, and the term “thing” has been changed to “property.”
For special larceny, the concept of “being armed” has been replaced by “actual use.” The title of a provision regarding the acquisition of stolen property through occupational negligence·gross negligence, “Occupational Negligence, Gross Negligence” has been changed to “Occupational Negligence, Gross Negligence, Acquisition of Stolen Property, etc.” In addition, the meaning of crimes of setting fire and using explosives have been clarified.
Sixth, the Draft Unified Criminal Law has reflected the changed times and situations of the era of unification. Firstly, it has reflected the changed times by deleting provisions on parricide, adding environmental crimes, deleting crimes of insulting a court or the National Assembly under the Chapter on crimes concerning obstruction of the performance of official duties, providing that no punishment shall be applicable against will for minor crimes, and revising terminologies, etc. Secondly, it has reflected the situations of the era of unification by clarifying the abstract expressions with regard to national legal interest, deleting crimes concerning the national flag, incorporating the provision on public structures related to the nation into that on general structures, and removing the provisions on manufacturing explosives in wartime and non-performing of munition contract in wartime, etc. Furthermore, the provision on the abandonment of duties under the Chapter on crimes concerning the duties of public officials have been retained, while a new provision on distorting the law has been added.

5. Conclusion

Since the enactment of criminal law, there has been a continuous movement for its revision. However, the past revision bills have never brought satisfactory outcome due to problems regarding their content and legislative procedures. The Unified Criminal Law Research Society(2017) has been formed for the purpose of generating a more advanced “alternative criminal law revision bill.” Each member has continuously conducted research recognizing the significance of the problems, based on which the Unified Criminal Law Research Society has carried out continued debate and discussion. The “Draft Unified Criminal Law,” which lies at the center of this study, is the result of such research by the members and discussion of the Unified Criminal Law Research Society.
We hope this “Draft Unified Criminal Law” that has been suggested as a “draft proposal” be critically uated and further developed by the academia, working-level officials, and members of the society, thereby transforming the Draft into a “Bill of Unified Criminal Law” to be ultimately completed as a “Unified Criminal Law.”