This study deals with issues on criminal legislation and addresses criminal polices based on certain criminal acts. 

Chapter Ⅱ closely examines how online public petitions set social agendas, form public opinion and affect legislation. To understand the process of public petitions leading to changes in legislation, the study uses web crawler to collect data from posts of the Blue House national petition bulletin board. Then it uses text mining to identify cases which recorded large number of consents and media coverages and then led to changes in systems or legislation of new laws among cases causing widespread anger. Specifically, the study analyzes in depth the relation between formation of public opinion and criminal legislation by extracting data related to three acts dubbed the ‘Yoon Chang-ho Act’ (tougher punishment against drunken driving), ‘Min-sik Act’ (aggravating punishment against drivers for car accident in school zones), and ‘Nth Room Prevention Act’ (aiming at preventing digital sex trafficking and unauthorized sharing of sexually-explicit videos).

Agendas set by public petitions form public opinion on specific events or issues, triggering attention from the media which stimulate social discussions on petitions. Ultimately, public petitions have great influence on legislation of criminal laws. 

In order to take a closer look, the process from petition registration to legislation is classified into stages of ‘initiation-stimulation-spread-resolution’. At the ‘initiation’ stage, content and substance of each event is created, and the created content and substance become a social issue at the ‘stimulation’ stage. Public petitions generate social discussions and public opinion, in the process of attracting public interest in particular issues and events, the media plays an important role by focusing attention on and making particular issues salient to the public. In consequence, intensified public interest and formed public opinion, driven by anger or calls for tough punishment, lead to alternatives policy responses or solutions. In other words, at the resolution stage, final responses come down to legislation. 

In this process, the public’s call for punitive response not only stimulate national discussion on issues but also function as driving force of continuously attracting public interest. In the process of enacting those three acts (‘Yoon Chang-ho Act’, ‘Min-sik Act’, and ‘Nth Room Prevention Act’ above mention was enacted, the public consistently called for thorough investigation and severe punishment on offenders. Most of cases resulting in legislation of criminal act share the common factor that they trigger public anger and create the public sentiment of harsh punishment. The legislative purpose must be recognized as legitimate under the constitution and legal system, and must serve to maintenance of social order and public welfare. However, precipitously legislated laws to respond to particular cases have in common that the utmost purposes of legislation is to severely punish those perpetrators and potential offenders. When an act is enacted following the purpose of imposing harsh punishment, in other words, when the public call for strict punishment is accepted, public interest in legislation rapidly decreased and social discussions on those cases is hardly rekindled. As long as strong demand for punishment continues, social interest does not wane even after the resolution stage, as we witness in the case of Telegram Nth Room, legislation on which continuously requires publicity of sex offenders as well as punitive punishment. 

Chapter 3 reviews all bills proposed for one year and sorts out criminal justice bills. Then it analyzes events and issues which the chapter finds out attracted considerable public interest and attention or had significance for criminal policy according to the standards and principles of legislative uation derived from the 2021 study. 

Laws are required to swiftly reflect changes of the times and intent of members of society. However, what must be held fast in criminal legislation are core principles of legislating criminal law that punishment shall function as a last resort, criminal law shall explicitly stipulate act to be punished and its consequences, appropriate punishment shall be imposed according to criminal responsibility, excessive punishment shall not be imposed, an act shall systematically and harmonize with other acts and maintain system equilibrium. Failing to follow those principles, laws may not function properly as social norms and consequentially people may distrust the judicial system itself.

For those reasons, before legislating criminal acts, it is needed to closely review not only core principles of legislation but also fundamental principles of criminal laws before enacting a law. Well recognizing issues regarding criminal legislation, the 2021 study suggested ‘legislative uation criteria of criminal law.’ The standards are largely classified into two categories of ‘general criteria and ‘detailed criteria’. The general uation criteria are applied to confirm whether the ‘legislative necessity’ is met and whether ‘elementary of principles of criminal law’, for example, the principle of legality and the principle of responsibility are fulfilled. The ‘detailed uation criteria’ are applied to the contents of each bill, specifically examining appropriateness of the scope of punishment, statutory punishment, and joint penal provisions. For special provisions, necessity of legislation is reviewed. If the bill fails to meet these criteria, there are risks of controversy over the effectiveness of the bill or its unconstitutionality, so a careful reexamination is necessary. 

To understand current status of bills in the National Assembly related to crime and law enforcement, bills submitted from August 1, 2021 to July 31, 2022 was analyzed based on the legislative uation standards above mentioned. Extracting key words from the contents that were frequently discussed in the legislative process of the National Assembly or attracted considerable social attention, the related bills were rearranged. Then those bills were classified into 8 categories; 1) age of criminal responsibility and juvenile crime, 2) measures to address problems in current law regarding responses to stalking crime, 3) aggravated punishment for drunken driving and the problem of the current system, 4) application of the Severe Disaster Punishment Act, 5) responses to digital sex crimes and sex crimes against children and adolescents, 6) improvement of the system for recovering proceeds from crime, 7) system reform for responding to child abuse, 8) introducing the victim impact statement to the sentencing guidelines. Those 8 topics have significances criminal policy, and at the same time, as examined in Chapter 2, they had drawn public attention, and then a number of bills were introduced to the National Assembly. 

It is needless to say that criminal legislation must bridge the gaps and improve problems of the current system as swiftly as possible and respond to public opinion. However, we have to be cautious that the criminal law should not be excessively applied or the society does not pursue only severe punishment policy. In this regard, it is very important to review whether the revised bill meets the criterion of the rationality, completeness, and constitutionality. Therefore, the legislative uation may be useful for future legislation. 

Chapter explores impact of public perception on the legislation, focusing on the so-called ‘Min-sik Act’ and ‘Yoon Chang-ho Act’, representative criminal laws related to driving offences, national petition and public opinion played a crucial role in enacting them. In order to examine the perception of the general public who have multiple interests in relation to the content of criminal legislation, the subjects of the survey were selected in consideration of gender, age, driving status, and presence or absence of children. Those surveyed were classified into 4 groups and Focusing Group Interview (FGI) was conducted on them. Based on interview outcomes, the study looked at the reasons that the public was anger for those cases, controversies over them, roles of the media as well as opinions of experts in the process of legislation.

The general public criticize that the two acts are enacted under the concept of so-called ‘legislative almighty’ and are fruit of haste legislation as legislators only accommodate to public opinion. In the legislative process of these two laws, which initiated by national petitions, the general public think that issues raised by public petitions were finally codified as a result of ‘legislative almighty’. Another problem of the two acts that the general public perceive is that only part of public opinion was covered by the media legislation is overly determined by public opinion. They also criticize the National Assembly for not being cautious and impartial during the legislative process but only showing political behavior. However, In the case of the anti-stalking law, the public think that enactment of the act to control stalking was too tardy to prevent further related crimes, which only resulted in more victims. While the general public have in common on the issue over reflecting experts’ opinion, they are divided on being swift and prudent in legislation. However, the study found that the public think involved issues determine the speed of legislation. 

As such, the general public’s uation of legislation driven by public opinion and public sentiment is ambivalent. For the role of public opinion during the legislative process, the public believe that it may have positive effect while generating unexpected effects and results. The legislative body in the legislative process should consider both experts and general public opinion, and it should be wary of unilateral public opinion-driven legislative almighty. There is still risk of haste legislation and legislative almighty in the criminal legislative process fueled by public resentment, but it is true that the criminal legislative process will not favorably proceed without public interest and public opinion. In other words, although they think ‘Min-sik Act’ and ‘Yoon Chang-ho Act’ were somewhat being hastily enacted, they also well recognize positive effect of public opinion on legislation. 

The public believes that a more thorough preliminary review is necessary for criminal legislative bills to be successfully enacted. Prior review and experts’ opinion can help criminal legislation to be accepted as a rational law that is not influenced by biased sentiment. In particular, in this process, the general public highlights the importance of experts’ participation through vitalization of public hearings. However, people are skeptical about the effectiveness of punitive punishment, which is presented as a legislation purpose in the actual legislative process. Of course, there are opinions that the existing criminal punishment is so lenient, but the prevailing opinion is that lenient punishment is issue of law enforcement but the deterrence effect achieving by strengthening of punishment through legislation is bound to be limited. 

Chapter 5 addresses outcomes of in-depth interviews on legislators and law enforcement directly related to enactment of the ‘Min-sik Act’ and ‘Yoon Chang-ho Act.’ The main purpose of interviews is to hear voices of practitioners in the field. 

‘Min-sik Act’ and ‘Yoon Chang-ho Act’ have in common that public opinion formed after a tragic traffic accident and then an act for severe punishment was swiftly enacted. However, there were controversies over excessive punishment and effectiveness after the act was enforced. In the end, some provisions of the ‘Yoon Chang-ho Act’ were found unconstitutional, while people strongly demand for mitigating punishment right after it came into force. 

Specifically, controversy over the ‘Min-Sik Act’ and the ‘Yoon Chang-Ho Act’ is related to the way of legislation. Those who criticize the acts say that the two acts represent what rough-and-ready legislation by currying favor with the public. Experts are interviewed to learn their though on excessive punishment or its effectiveness, increase in the statutory maximum and minimum sentences of specific offences regardless of offender victim’s negligence and the seriousness of the case, and the equity of the statutory punishment of the ‘Min-sik Act’ and the ‘Yoon Chang-ho Act’.

Results of interview show that both legislators and law enforcement officers well recognize the legislation purpose of the two acts, specifically, raising children’s traffic safety awareness in child protection areas and sending strong warnings about the dangers of drunk driving (preventive effect). In addition, both legislators and law enforcement officials have ambivalent feelings about the Constitutional Court decision of unconstitutionality of the ‘Yoon Chang-ho Act.’ They understand both pros and cons of excessive punishment pursuant to the act. They also recognized the gap between the statutory punishment and real sentence and followed controversies over effectiveness of the act. 

However, legislators and law enforcement officers show difference in pointing out fundamental cause of the gap between reality and statute. For legislators, the pros and cons of the act and the decision of unconstitutionality are also ‘a process of agreement’, that is, a process of democracy, so it could not be dismissed as a matter of the legislative process. On the other hand, law enforcement officers well understand the legislative purpose of the act while they think the act was hastily enacted driven by public anger, as a result, we have witnessed various practical problems of enforcing the act, such as difficulties in execution, less effectiveness, and so on. As opinions of law enforcement officers are more relevant to practical issues, their voice and opinion on institutional and procedural supplementation for enacting more effective laws are likely to be reflected. 

Law enforcement officers answered that it is important to reflect public opinion in legislation, but if the legislation is a result of jumping on the bandwagon” or grounded on a biased public opinion, a bill submitted may not meet many conditions such as the clarity and effectiveness of the law, making it difficult to establish legitimacy of the law. That is why, in the view of law enforcement officers, it is necessary to make legislation after thorough review and deliberation. Chapter 6 explores a plan to build a criminal legislation DB and uses the DB in the analysis of actual administrative penalty provisions as a tool to increase the effectiveness of the legislative uation improvement which confirmed through in-depth investigations in Chapters 4 and 5. By doing so, it figures out possibilities and limits of the DB. Through the Focus Group Interview (FGI) and In-depth Interview (IDI), it is learned that people concerns about the excessive reflection of public opinion in criminal legislation while they think the existing sentence is too low because the change in the value standard is not properly reflected. In the criminal legislative process, experts play a significant role in confirming the democratic legitimacy of public opinion and converting it into normative grounds for argument so that the legislative process conforms to the criminal law system. The effectiveness of legislative uation could be greatly improved if a tool is provided to experts to categorize the illegality of administrative penal provisions, which account for the vast majority of penal provisions, and to compare the balance of statutory sentences. 

First, Penalty provisions are classified by type. Then conditions are set and the average and standard deviation of the statutory maximum and minimum values of the components selected through keyword search is calculated. In addition, it analyzes feasibilities and limitations of building a criminal legislation DB that could separately search for negligence (malpractice, gross negligence, etc.) as a mitigating factor, attempted crime, conspiracy, instigation, aiding and abetting, joint penal provisions, and simultaneous impose of punishment. To this end, an algorithm is developed to examine all provisions of 1590 existing laws in an automated way, and 12,511 penalty provisions are identified in a total of 933 laws. The selected provisions are classified into 11 groups of ‘permission, permission, approval, designation’, ‘registration, report, confirmation, notification’, ‘type approval, test, inspection, certification’, ‘various marks’, ‘acts such as confidential leakage’, ‘use of similar names’, ‘violation of administrative orders’, ‘obstruction of duty’, ‘violation of conduct or business rules’, ‘act related to qualification (person)’, and ‘act similar to criminal law.’ Then, errors are corrected manually. In order to confirm the usefulness of the Criminal Legislation DB, general review and analysis of the current administrative penalty regulations is followed. 

The Criminal Legislation DB is used to examine appropriateness of administrative penalties and it is found that administrative penalties for some offences are overlapped with criminal penalties. The problem of overlapping penalties is that administrative penalty provisions. may cause the general criminal law to lose its practical value. Although the antisocial nature of duty violations may vary depending on the area governed by the administrative criminal law, it is necessary to balance the statutory penalties for similar duty violations between the administrative penalties and criminal punishments. In addition, there are cases in which much heavier punishment than the statutory punishment is imposed by adding an aggravating factor called “recidivism” to the general offences. In this case, if the punishment is 50% more severe than the punishment prescribed in the criminal law, balance with the statutory penalty could be pointed out as a problem. In addition, regulating obstruction of administrative investigations by criminal punishment, such as fines or imprisonment, rather than monetary sanction for negligence, may run counter to the principles of due process and self-incrimination. 

However, the criminal legislation DB still has technical limitations, so it is necessary to upgrade the search algorithm, data inspection, user interface development, and correct errors to be used more widely. It is expected that the advanced and updated criminal legislation DB become a tool that derives more meaningful results in criminal legislative uation in the near future. Chapter 7 examines achievements of the former government’s criminal legislation related to state affairs, analyzes the policy direction of the current government from the perspective of criminal policy, predicts expected issues in the uation of future criminal legislation, and suggests the direction of criminal legislation. 

First of all, overall criminal legislative achievements which obtained during the Moon Jae-in administration include protection of the weak and system improvement in numerous fields while heavy penalties were imposed in a wide variety of crimes. Heavy penalties were broadly imposed on offences which were criticized for absence of punishment or too leniency of punishment. However, in the process of criminal legislation, it is not easy to find a practical examination and uation of the extent that the pursuit of imposing heavy punishment has contributed to the benefit and protection of the law. 

In the case of the newly inaugurated Yoon Seok-yeol administration, it is still difficult to predict what stance the government would take regarding criminal legislation. However, it cannot be denied that for administrative punishment and economic criminal law, a slightly different stance is detected compared to the previous government. In other words, the current government seems to try to break away from imposing heavy punishment, by decriminalizing certain offences, introducing administrative measures as preceding measures, and lowering of 

existing punishments. Ultimately, it is necessary to reconsider the original purpose of criminal punishment and focus on the question of what measures could best serve to the purpose of protecting legal interests. Considering all those things, the perspective of behavioral economics was partially borrowed in order to help review the relationship between mediocrity, the complementarity or modesty of criminal law, and the effectiveness of criminal law from a different perspective than before. 

Before intensifying severity of criminal punishment, which is the most powerful coercive measure to respond to crime, it is time to examine the effectiveness of other alternative measures before legislation. At the same time, it is necessary to conduct an ex post uation of whether the purpose of enhancing benefits and protection of the law has been realized by imposing heavy penalty. What also is required is to consider the necessity of reviewing possibility of using other alternatives that are less coercive than criminal punishment in some specific areas.