형사법 관련 헌법재판소 위헌결정의 최근 동향과 시사점

This article analyzes the main features of the Constitutional Court's decisions in the last two years, which have declared criminal (procedure) laws unconstitutional. First, in cases involving the unconstitutionality of penal provisions, the Constitutional Court emphasized the complementarity or ultima ratio of criminal laws. Regarding the principle of criminal liability, unlike in the past, statutory sentences were strictly judged on the basis of a fine distinction between various modes of behavior or the possibility of a suspension of execution. Second, with respect to the principle of the least restrictive means, the Constitutional Court provided a direction for legislators to remedy unconstitutional provisions, by specifying alternative means. Third, the Constitutional Court emphasized principles of criminal law, such as the principle of criminal liability and the right to cross-examination, at the risk of social criticism for being lenient with criminals. The decisions were never intended to protect criminals, but rather to reiterate the basic principle of adhering to the minimum conditions of criminal (procedure) laws, which are formalized to prevent arbitrary punishment by the state. Fourth, the Constitutional Court tended to declare the relevant provisions unconstitutional rather than nonconforming to the Constitution. This attitude of the Constitutional Court is desirable because practical problems can be solved by the efforts of legislators, investigators, and judges. Rather than relying on the Constitutional Court's “post hoc prescriptions” and rushing to legislate on the basis of public opinion, legislators should strive to create constitutional criminal (procedure) laws, even if it is a bit late.