“행위 중에 형벌법규의 변경이 있는 경우 법규의 적용 문제”의 평석

This article is a summary of Professor Moon Chae-gyu's paper at Pusan National University, “Problems of application of laws when there is a change in the punishment law during an act,” in response to his retirement age, and adds my own commentary. In this article, after deeply considering the theoretical and practical aspects, Professor Moon argued that in the case of divisible and comprehensive one-day crime, it is appropriate to apply the new law to acts after the law change. While I completely agree with this argument, I have explained it more simply and explained the purpose of Professor Moon's thesis. Considering that the discharge of certain pollutants into rivers was not yet considered a crime, but was then newly criminalized and the companies discharging pollutants were punished, the validity of this paper can be easily acknowledged. In fact, most of the new enactments of penal laws and upward revisions to punishment were enacted in response to the social recognition that criminalization of the problem and strengthening of punishment were necessary. However, it is not legal definition that an act cannot be unconditionally punished just because it is an act that has continued in the past. It is undesirable both from a political perspective and from a legislative policy perspective. For the dogmatic reason of 'one comprehensive crime is also one crime', if the first time of discharge is regarded as the time of act and all applications of the new law are seen as a violation of the law of the time of act, the existing pollutant discharge company will continue to discharge pollutants as long as the illegal act continues. Because it is the same as enjoying a privilege, it causes a big problem in terms of criminal policy. Even a person who has committed an indivisible crime is subject to a criminal duty of omission not to release it, or an action duty to purify it and discharge it, from the time when legislation is enacted to punish it anew or strengthen the punishment (or when the relevant law comes into effect separately). If there is sufficient opportunity for him to recognize the duty, punishing him from that point forward can be justified even under the principle of criminal justice.