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KICJ Research Reports

The Practice of Criminal Legislation and Legislative Evaluation of Major Criminal Policies(Ⅲ) 사진
The Practice of Criminal Legislation and Legislative Evaluation of Major Criminal Policies(Ⅲ)
  • LanguageKorean
  • Authors Jeeyoung Yun, Jeong ho Lim, Youngkeun Oh, Kim, Seong-don, Ryu, Bu-gon, Roh, Seung-Kookg
  • Date December 31, 2023
  • Hit51

Abstract

  As of December 20, 2023, the total number of legislative bills proposed to the 21st National Assembly is 25,206, which surpasses the previously record high number of the 20th National Assembly (24,141 bills). Unfortunately, of those the number of bills that has been read is only 7,895 (31.32%) and the rest are, reportedly, still pending at the Assembly. It would be presumptuous for us to criticize the members of the National Assembly for what they do as their own job. Nevertheless, it is a matter of great concern that the lawmaking process, or discussion and examination of the bills, is not properly carried out in the Assembly due to the overissue of the bills and most of the bills are abandoned as they are expired, even without being considered to be read.

  In the meantime when a violent crime that draws the social attention occurs, the citizens feel anxious and fear for the safety of their families and themselves and demand the state to punish the offenders severely and to take a firm action to prevent similar crimes. In particular, recently, as the development of information and communication technology as well as of the social media has made the formation of public opinions easier and more frequent, there is a growing concern that the legislators would take a populist approach and overissue the regulations of excessive punishment, which are likely to lead to the introduction of symptomatic justice system. Criminal legislation should be more carefully effected since it is an act of serious impact on the people’s lives, or violating their body, freedom, and property through the criminal sanction, and the process of realizing the punitive authority of legal state through the criminal procedure puts a restriction on the basic rights of the people, inevitably.

  With these in mind, the Korea Institute of Criminology and Justice (KICJ) has developed a 3-year study project to find a desirable direction of criminal legislation in the midst of flood of bills. The study has two detailed sub-goals, of which one is to monitor the annual criminal legislation state, analyze the trends of public opinion, and then uate the legislation activities by major policy, and the other is to suggest a method to improve the appropriateness and efficiency of criminal legislation. With respect to the latter, the first year study performed in 2021 suggested criteria for legislative uation and a direction to improve the criminal justice system applicable to the practice of criminal legislation. The second year study in 2022 investigated the state of key criminal justice policies based on the results of the previous year study, and analyzed the systematic consistency of each punishment regulation through a complete enumeration survey from the theoretical perspective of the criminal laws. Furthermore, the third year study in 2023 has presented criteria for legislative uation applicable to the criminal procedure laws after examining the unique characteristics and tendency of the laws, while searching for a method to practice the legislative uation on the laws of criminal procedure.

  This study, first, examined the state of criminal legislation presented to and processed by the National Assembly from August 1, 2022 to July 31, 2023, and performed word frequency analysis by collecting relevant data from the news articles and comments posted from May 1, 2022 to July 31, 2023 on NAVER to understand the public and the media‘s view on the key criminal justice policies. As a result, it has found that the public opinion on certain crimes which attracted the social attention, such as stalking, infanticide, drunk driving, and virtual asset crime, and on identification disclosure of violent crime suspects commonly demands to strengthen punishment. This study has also reviewed the influence of the public opinion on the actual legislative process and has analyzed the legislative outcome, targeting not only the policies for which the legislative work was completed, such as stalking crime, infanticide and infant abandonment, identification disclosure of violent crime suspects, drunk driving, and the protection of virtual asset users, but also those for which legislative omission became an issue, such as abortion crime and dating violence.

   As a result of the thorough examination of the criminal legislation on the above topics, the study has found that the legislators reflect the public opinions actively on most of the legislative process. Especially, when a crime of greater social impact occurred, the legislators, who tend to be keen to public opinions, intensified the statutory punishment of relevant crimes and proposed the bills to expand the target offenders who are subject to the attachment of electronic monitoring device or whose identification is subject to disclosure. Furthermore, such bills tended to be processed more quickly than others. On the other hand, the legislators remained silent for an extended period of time about the issues that sparked intense discussion and a sharp division of opinions, such as the modification of abortion crime regulations. Moreover, in many cases they did not submit the cost estimation or the explanation for omission of the cost estimation while presenting a bill that required a demand for cost estimation, performed the markup sessions just for the sake of formality while dealing with statutory legislation, and often omitted public hearing through committee voting even though the hearings would give them an opportunity to listen to experts‘ opinions. In addition, while they pointed out the necessity of proof materials, the legislators passed some bills without any scientific evidence. Even in some cases, immediately before the Legislation and Judiciary Committee‘s voting for the review of the system and wording on a legislative bill, they changed what relevant standing committees has clarified through an alternative measure.

  This study also focused on the criminal procedure laws and examined the problems and institutional limitation in the legislative process, and suggested some criteria at the normative level, such as justice of basic human rights. In addition, it looked over the circumstance of the enactment and revision of criminal procedure laws of the last ten years and analyzed the tendency and thus deduced some considerations which might have been in the mind of the legislators when they legislated the criminal procedure laws. Because unlike the substantial laws of the criminal justice which have a single and unified structure between the action-stipulating norm and the sanction-stipulating norm, the criminal procedure laws have multi-layered structure among different elements and perspectives, it is necessary to establish legislative uation criteria that consider a lot of variables. Keeping that in mind, this study suggested a ‘system of legislative uation criteria’ as a means to secure the criminal procedure laws’ legitimacy in both form and content and organized as a check-list the criteria of legislative uation on the criminal procedures by area and type. Furthermore, it listened to the opinions of the experts in criminal legislation about the ‘legislative uation check-list concerning the form and content of criminal procedure law’ and received a positive feedback that the check-list was useful as judicial review criteria for criminal legislation.

  In particular, to put the legislative uation of criminal procedure laws into practice, this study contacted forty people in the relevant areas, including criminal law experts (professors at educational institutions), legislative experts in the National Assembly (members of the National Assembly, examiners of the National Assembly Secretariat, researchers of the Korea Legislation Research Institute, etc.), judges, prosecutors, and lawyers and conducted an in-depth interview. As a result, this study collected and analyzed the opinions of thirty-six people who answered to the request.

   According to the results of the expert interview, the common criteria to distinguish a matter of laws and a matter of orders and rules are “whether the matter limits the freedom and rights of the people, or the matter is criminal procedure related directly thereto.” In the case that a matter concerns not individual people but the division of power among the public authorities, it should be reasonable to define the matter as a law because although it is not directly related to the basic rights of the people, if it causes disruption in the process of criminal law procedure as the conflict arises on the surface between the authorities, the damage would become the burden of the people, entirely. Provided, however, to respond to the changing technology and social demands in a timely manner, the laws can contain the principles and direction and the details may be delegated to lower statutes.

  Next, this study has found that there is an absolute agreement among the experts, regardless of their speciality areas, that the public hearings are an essential procedure to the legislation of criminal procedure laws. In short, public hearings in the course of legislative review of criminal procedure laws should be established as a mandatory process, except when the review is urgently required or a serious side effect, such as a physical conflict between concerned parties, is anticipated. Also, to enrich the quality of public hearings, the customary practice that the presenters or speakers are selected through discussion in a same political party should be improved. In this sense, we can adopt an expert recommendation system from the academic societies or the scholarly institutions. Furthermore, to prevent the public hearings from being a single event, it is necessary to improve the public interest in the issues and the level of reliability about the public interest by providing the people with follow-up information and updates continuously. Also, all of the experts who participated in the interview mentioned the necessity of a “review and report by the members of special committees” as an important legislative procedure other than public hearings, and they pointed out that additional review by criminal law specialists would be necessary to enhance the professionalism.

  In the legislation of criminal procedure laws, there exists a legislative principle in each area, in addition to the two major principles, or the principle of substantive truthfulness and the principle of due process. Of these principles, this study asked which should be absolutely observed, and which can be optional or selected in relation with others. The interviewees pointed out, almost unanimously, the ‘principle of due process’, which is based on the constitution, as an absolute principle, along with the ‘legalism of compulsory disposition’ and the ‘presumption of innocence’, both of which are derived from the principle of due process. Next, the principles which the interviewees regarded as a relative principle depending on the perspective of the Criminal Procedure Act, despite many other people regard them as an absolute principle, included ‘substantive truthfulness’, the ‘rule of warrant’ and the ‘rule of confession.’ Here, the rule of warrant and the rule of confession are prescribed in the constitution and thus should be included in the absolute principle category, reasonably. On the other hand, ‘state prosecution’, ‘prosecution compelling system’ and ‘notice of prosecution claim’ were categorized as a relative principle almost unanimously. The reason is probably those do not have a human right and constitutional value by themselves but rather could be operated flexibly in accordance with the social, cultural and political situation of the state. In the meantime, the principle which caused the most intense conflict among the interviewees in determining whether it was an absolute principle or a relative one was the ‘exclusionary rule of illegally obtained evidence.’ In general, criminal law scholars, lawyers, and legislative experts of the National Assembly tended to regard it as an absolute principle, while most of the hands-on personnel, such as the court members, prosecutors, and police officers viewed it as a relative principle. The current study sees that this principle should be taken as an absolute legislative principle in that any piece of evidence acquired without observing the constitutional principle of due process must be denied of its admissibility, ‘categorically’.

  Moreover, this study asked the expert interviewees if it would be possible to determine superiority and inferiority among various legislative principles in the criminal procedure laws, and most of them answered that there is a clear dominance relation between the principle of substantive truthfulness and the principle of due process. Both are explained as an essential value that the criminal procedure laws seek fundamentally, although their relationship becomes often tense and competitive. However, the survey under this study has revealed that legal experts see the principle of due process more important than that of substantive truthfulness, in general.

  Of the legislative principles of criminal procedure laws of other countries, the Grand Jury system was the most frequently mentioned as a necessary system to be introduced to our judicial system. Some argued that the ‘abuse of arraignment right’ should be stipulated as a law. It is a theory that in the cases where a person holding the right of arraignment abuses the prosecutory right, relevant criminal procedure should be suspended by an appropriate measure, such as dismissal of prosecution. Another legislative principle mentioned by many experts was the ‘principle of victim protection.’ It is to recognize victim of crime, other than the court, prosecutors, and the accused, as a subject of criminal proceedings and to consider the introduction of the criminal victim participation system or the private prosecution system. Other opinions included the introduction of the ‘plain view doctrine’ in relation to the evidence rules, ‘plea bargaining‘ in the investigation course, and ‘criminal reconciliation and mediation (restorative justice)’ to recover, substantively, the damage of criminal victims.

  This study also looked into the rights of victims and the accused in the criminal procedure laws, and has found that most experts see that the nominal or declarative status of criminal victims has been improved but the actual status is still low. In addition, the study asked them if there was a concrete method or standard to make a comparative sentence which can be applied when the rights of criminal victim and the accused are conflicting. About this, most of the criminal law scholars understood that when it came to criminal victim and the accused‘s relationship, the victims were on the uneven playing field and thus the center of gravity should be now moved. On the other hand, as far as this issue is concerned, the majority of hands-on experts have showed rather a unified tendency in principle, that, just as the most of the scholars, they took the similar position that the criminal justice system should find a way to minimize the possibility of violating the legal rights of criminal victims, such as secondary victimization, while effectively guaranteeing their rights. However, they have assessed that such method is not too seriously important to be put into practice by overpowering the right of the accused or by infringing or limiting the fundamental aspects of the accused‘s basic rights. As for the rights of either the accused or the victims which need to be strengthened given the current situation, the ‘right to access information’ was mentioned most frequently. According to the interviewees, the accused should be allowed to access their investigation records by themselves or through their counsels before the review of arrest warrant, the victims should be guaranteed the right to access their own case records, and both the accused and the victims should be given a proper notice for their case. As a minority opinion, some said victims’ incidental prosecution right or appeal right should be acknowledged, and others argued that the number of prosecutor at the court hearing should be limited to one in order to realize the principle of nemo tenetur se ipsum accusare, or the principle of fair trial for the accused.

  Furthermore, this study examined which tasks need the most urgent improvement in all areas of the criminal procedure laws, and found that in all groups of profession, the ‘readjustment of criminal procedure law compiling system’ was pointed out the most urgent task. The next priority-task was the improvement of the ‘reasons and clear criteria for seizure of person’, followed by the stipulation of the ‘process and method of search and seizure of electronic information (including the victims‘ right to participate).’ In addition, the study divided the entire criminal procedure into investigation process, court hearing process, evidence rules, trial and appeal process, special process, retrial process and others, and presented the improvement tasks in each area, which would be a useful tool for the revision of criminal procedure laws in the future.

Keyword: Legislative uation, criminal legislation, uation of criminal legislation, criteria for legislation of criminal procedure laws, stalking crime, infanticide, infant abandonment, disclosure of the identification of violent crime offender, drunk driving, virtual asset crime



    


  


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