구동독 사법종사자의 법률왜곡사건에 대한 소고

After the collapse of East Germany, the issue of judicial liquidation of systemic illegalities committed by the state came to the fore. Among them, legal distortion by judicial officials is a representative systemic crime. Distortion of the law was mainly done by judges, but in many cases it was done by prosecutors in charge of criminal prosecution. Since the continuity of fundamental illegality is acknowledged for the crime of perversion of law in the penal code of East Germany and the Federal Republic of Germany, both are basically applicable, but in principle, the provisions of the East Germany, which are milder, apply. However, the case of distortion of law is a clear arbitrary decision and is accompanied by serious human rights violations. In this case, the application of the East German criminal law is excluded according to the principle of international law, and the criminal law of the Federal Republic of Germany can be applied from the beginning. Regarding the principle of non-retroactive effect, it does not matter if the former German criminal law is applied through a human rights-friendly interpretation. In the case of serious human rights violations, the application of the criminal law of the Federal Republic of Germany does not violate the prohibition of retroactive effect, since the application of the laws of the illegal regime is also excluded according to the principles of international law. It is not necessary to believe that a legal professional who blindly conformed to the illegal system was allowed to act, so prohibition error cannot be recognized. In addition, since there was awareness and intention of the act of perverting the law, intention is not carved out.