통일 이후 체제범죄 처벌을 위한 준거법 문제 - 독일통일 과정에서 제시된 해결방안을 중심으로 -

When the illegal system collapses, the question arises as to which criminal law will be applied in the criminal law liquidation of the illegal system in the rule of law. It is a matter of whether it is the criminal law of the old system that was actually applied at the time of the act or the new democratic law that has found a new application area. Regarding the punishment of systemic crimes in the former East Germany, there have been various arguments related to this in Germany, but according to the Criminal Law Enforcement Act under the Reunification Treaty, the conflict between the criminal law of the old system and the criminal law of democracy was treated as the same as the revision of the law, giving priority to the mild law and prohibiting retroactive effect. However, for acts accompanied by serious human rights violations prohibited by international law, the application of the criminal law of the illegal system is excluded and it is considered that the democratic criminal law was applied from the beginning. Despite what the law stipulates, there have been many discussions in the academic world as to which criminal law is applied, and various theories have been asserted. In particular, there was a strong objection that the former East German criminal law should not be taken into account and only criminal law of the Federal Republic should be applied. In addition, as a precondition for determining the applicable criminal law, the continuity of illegality between the constituent elements of the both criminal law must be recognized. In the case of the crime of perversion of the law, the German majority theory and the Supreme Court recognize the continuity of illegality. Accordingly, in the case of crimes of perversion of law, in cases involving serious human rights violations, the federal criminal law is applied from the beginning, and the application of the German criminal law is excluded. In other cases, in principle, the sentences of the two criminal laws are compared and the lighter East German criminal law is applied. A very serious discussion in Germany regarding which criminal law to apply shows that judicial settlement of the past is possible only through thorough preparation and legal logic. A lot of theoretical preparation is also needed for the liquidation of North Korea's illegal regime after the upcoming reunification of Korea.