In the 20th National Assembly, which closed its operations in May 2020, an all-time high total of 24,141 bills were proposed, of which as many as 15,002 bills (62%) were abandoned as they expired. The number of bills proposed for about an year and two months from the opening of the 21st National Assembly on May 30, 2020 to July 30, 2021 were almost as many as 11,926. If we convert the active period of the 20th National Assembly to an year and two months, the number of proposed bills is calculated as 7,041, which in turn indicates, on a purely arithmetic basis excluding any other considerations, that the number of bills submitted to the 21st National Assembly increased by 41% compared to the 20th.

It should be deemed positive that the members of the National Assembly listen to the citizens and diligently reflect the citizens’ voices to the legislation. Nevertheless, it is pointed out as a serious problem that important bills which have to be taken with more weight are dismissed or treated lightly due to the overissue of bills. In addition, if consistency or appropriateness of a certain bill in both form and content were not examined properly in the course of proposal or the process afterward, it could be found unconstitutional later, causing a legal hiatus. Of course, the Assembly could gain time to take a proper legislative measure through Constitutional Nonconformity decision; nevertheless, it is almost impossible to completely recover damages endured by those who were deprived of the benefit and protection of the law in the meantime. To be more precise, the Assembly should consider the effect of prevention and defense of society against crimes beyond mere regulation, and keep in mind the potential impact of criminal sanction on the people, or violation of the life, body, freedom, and property of the people as a result of law-making. Therefore, the process of criminal legislation must be carried out more carefully and thoroughly. In such context, this study starts with the examination of the current legislative procedure and review system in Korea, delves into the assessment of criminal legislation in major policies, and attempts to suggest some criteria of legislative review and direction to improve the process system in consideration of the characteristics and tendency of criminal laws.

First, this study summarizes the legislative procedure and review system of Korea, and then examines legislative review system of other major countries, such as the US, Germany, France, and Japan from the comparative legal research perspective. In addition, to show the current state of criminal law legislation, this study selects and analyzes 1,674 bills which can be categorized under the criminal law section, out of 11,926 bills proposed about an year and two months from May 30, 2020 to July 30, 2021. Also, by collecting data from NAVER news articles, comments and responses in the same period, and performing a keyword frequency analysis on those data, it understands the media and the public’s view on the public officials’ conflict of interest, punishment on child abuse cases, and punishment of digital sex crimes, stalking, and occupational safety issues, and attempts to suggest directions to improve relevant policies. Further, it reviews the impact of public opinion on the legislative process and the result of legislation, focusing on the legislation concerning prevention of child abuse, conflict of interest, serious disaster, stalking, and digital sex crime, as well as military judicial system which was in fact revised as the media coverage increased rapidly in the second half of 2021, and the Infectious Disease Control and Prevention Act, which has been under the process of revision since 2019 until recently.

The findings of examination on the above cases indicates that, despite the media’s concern, the National Assembly carries out a meticulous examination on most of the bills. In other words, the necessity of legislation, relationship with other laws (consistency), necessity to make additional punishment, clarity of main agent, scope of application, validity of statutory punishment have been discussed thoroughly. At the same time, as for the criminal legislation, the following issues are worth noting for further examination: ① Despite direct relationship with the violation of basic rights of the people, some bills were put under a simplified review procedure with public hearing being omitted, because they were not enactment but a partial revision of a law; ② Administrative law penalties (punishment) tend to be taken lightly, compared to special criminal penalties; ③ The review subjects were varied depending on the Standing Committees. More specifically, the bills were discussed from various viewpoints in the Legislation and Judiciary Committee where many members had legal background and career, but not in other committees, and ④ While the minutes of subcommittees are disclosed, he materials submitted to the subcommittees for decision-making (departments opinions, agreements, and references, etc.) are under confidentiality, and thus it is difficult to understand the exact subject contents that are discussed by the subcommittees.

With those issues in mind, this study searches and analyzes all the criminal law precedents found to be unconstitutional by the Constitutional Court of Korea since its establishment in 1988 in order to suggest a new set of review criteria that considers the unique characteristics of criminal laws. The new set of criminal law review criteria, also called the ‘Checklist for Criminal Legislation’, is divided into ‘General Check Criteria’ and ‘Detailed Check Criteria.’ The former is criteria for general matters related to the necessity of the law and basic criminal law principles, and the latter is more specific criteria concerning the elements of a crime and court’s punishment. Moreover, this study has listened to the professionals’ opinions on the Checklist, and received general assessment that it is a sufficient criteria to review the legal principles of a criminal law-related bill, and using such checklist is essential in the review process of criminal legislation.

Furthermore, to find a method to improve the institutional process of criminal legislative review, this study requested an in-depth interview, in writing, from the legislative experts in the National Assembly (members of the National Assembly, specialists and examiners of the Secretariat, and legislation researchers of the National Assembly Research Service) and fifty criminal law experts (professions at educational institutions), and collected and analyzed forty-four responses. Given the experts responses, there is a different viewpoint between the academic circle and the experts of the legislature concerning that the public hearings are subject to the discretion of the Standing Committee. The current law prescribes that as a rule, opening a public hearing is in the sole discretion of the Committee, except in the case of enactment of a new law and revision of a law in whole, in which cases public hearing is mandatory. However, as the law approves an ‘exception to that exception’ again, all public hearings are eventually subject to the Committee’s discretion, in practice. In regard to this, scholars pointed out that criminal law experts were not sufficiently involved in the criminal legislative procedure for the review purpose, whereas the experts of the legislature were skeptical toward the necessity of institutional improvement for criminal legislation or its effectiveness. It is not appropriate that the current law imposes a double condition concerning the opening of public hearings. The law should either regulate that all public hearings be subject to the discretion of the Committee, in accordance with the reality, or abolish the exceptions in consideration of the importance of enactment of new laws or revision of a law in whole.

In the meantime, this study has found the difference in the accessibility to various materials generated in the course of criminal legislation discourse. Currently, all minutes of congressional committees are disclosed through the Management System of the National Assembly Minutes, but some of the criminal law experts do not have access to such information. The main reason for this is that not all relevant materials are not provided through the Bill Information System of National Assembly Library in a systemic manner. While the original text of bills, review and assessment reports of relevant standing committees, minutes of both subcommittees and general meetings, Legislation and Judiciary Committee’s self-regulation reports, and the minutes of the National Assembly regular sessions are provided by the Bill Information System, materials for public hearings are provided by each standing committee's website, and the minutes of Legislative Subcommittee on the Deliberation of Bills are available at the Minute System of the National Assembly. Because of such different routes, some argue that an integrated information system needs to be established for research and use of various materials generated in the legislative procedure. Most experts in legislature, too, agree on the necessity of an integrated system, such as an one-stop portal service for criminal legislation or AI legislative support system, open to the general public. However, already on September 1, 2021, the ‘National Assembly Minutes Big Data’ service, using AI and big data, was launched. On this side, users can not only find the minutes of each meeting and official comments of each member of the Assembly at the meeting, but also obtain visual data and dataset. However, this site provides only those materials that have been processed in various forms based on the original materials already available, and not any further materials, such as individual departments’ opinions or agreements among them, and reference materials, which are usually provided upon the assessment at the Legislative Subcommittee on the Deliberation of Bills. This study, therefore, suggests to expand the range of target materials to be disclosed.

In case of criminal legislation, assessment should be carried out in depth not on the administrative system or financial burden, but on the criminal elements' consistency from the perspective of legal principles and the appropriateness of punishment. In this respect, most experts, including absolute majority of scholars, agree to set up the ‘Criminal Legislation Review Committee’, as a preliminary assessment system. It indicates that, given the importance and riffle impact, there is a general consensus about criminal law experts’ participation in the legislative review process. They also acknowledge and agree that increasing the participation ratio of criminal law experts is important, and so is the participation of general legislative experts. It is also worth noting that most scholars believe that while criminal law experts should take a central role in such review committee, legislative experts should constitute of not only the expert committee members of the National Assembly or legislative examiners, the director general of the Legislative Counsel Office at the National Assembly Secretariat, and many deputy director-generals, but also retired former legislative experts.

Meanwhile, about the institutionalization of post uation of criminal legislation, the contrast was clear as the most scholars responded negatively, whereas the absolute majority of legislative experts responded affirmatively. The main reason for the former’s negative response was the difficulty in preparing the practical criteria of uation and the likelihood of poor practicality as a result, despite some of the positive aspects of the post uation. On the other hand, most of the legislative experts viewed implementation of post uation positively, and expected it to be useful to the legislation of other areas of laws as long as a responsible body can monitor whether relevant law is operated as its legislative intent, whether the legislative goal is attained, or whether there is any unforeseen side-effects, properly. It appears that such different viewpoints result from the difference in their perception of the objectivity of post uation method. Objectivity could be ensured if there were sufficient objective measures or indicators for post uation; however, given the reality in which reliability and credibility of scientific and statistical methods are questioned on a fundamental level, the discrepancy would not be resolved sooner than later. Sharing different views itself, however, might be a good starting point to solve the matter.

Finally, the legislative experts saw the increase of legislative bills a positive phenomenon in some aspects, which is a completely different view from the criminal law experts. According to them, the increase in the number of bills proposed by the members of the National Assembly results from the legislative demands of the people due to the changes in social and economic environments, and is an evidence of the Assembly’s proper exercise of its legislative authority. They also recognized that it was not problematic for the members of the Assembly to propose similar bills at similar times because even if the contents of criminal law bills were similar, the legislation could be more elaborate by discussing other legislations with different elements and punishment level of relevant crimes. Furthermore, they saw the problem of overissue should be solved voluntarily and naturally by the members themselves through their consciousness through change of their awareness or social and cultural changes.

Although the increase in quantity of the bills must have some positive aspects, reviewing a larger number of bills which do not even meet the minimum requirements is simply a ‘time-consuming legislation’ procedure, not an ‘elaborate’ one. Therefore, the general and the detailed checklist criteria must be thoroughly applied to criminal legislation from its preliminary stage. By doing so, our society will no longer struggle to make better criminal legislation in the midst of flood of bills, and the citizens will be able to enjoy the protection and assistance of laws through criminal legislation like a welcome rain in the drough.