형벌조항 해석의 실무상 문제와 해결방안

Interpretation of the penal statute play a key role for prosecutors and judges to make a decision in prosecution and conviction stage. Nevertheless, rules for this have not been systematically established, nor have they been educated. In practice, there are not a few cases in which an acquittal is declared after being prosecuted due to unclear penal statutes and insufficient understanding of interpretation principles. It is so not uncommon for the conclusions of lower and upper courts to change. To imagine the economic and psychological burden the defendants will experience in this process is not easy. If penal provisions themselves have indeterminacy, and prosecutors and judges try to solve real problems before them through interpretation after deciding them valid, they face unsolvable uncertainty. As the number of criminal provisions increased due to the phenomenon of over criminalization, it is not uncommon for provisions that are vague, ambiguous, contradictory, and do not reflect the nulla poena sine lege principle. Since courts and prosecutors make interpretations and judgments based mainly on the facts of the case, it is difficult to set the limits of penal statute from a broad perspective. Regarding these practical problems, I will explain the importance and necessity of interpreting the penalty provisions, causes of confusion in practice and difficulties in solving them, principles of interpretation and actual application cases, and countermeasures in order. Through these, I will try to improve the consistency and predictability of future prosecutions and judgments, and to contribute to the protection of human rights.