형법개정과 형사사법의 나아갈 방향

The Korean Penal Code, established in 1953, reflected the post-Korean War chaos by emphasizing nationalism and anti-communism to maintain social order and national security. The code was drafted with reference to foreign laws, including German, Japanese, and Taiwanese penal codes. Over the past 70 years, the Penal Code has undergone 21 partial amendments, primarily driven by international treaty obligations and constitutional rulings, with substantial revisions beginning in 1995. Although Korea’s Penal Code has been amended less frequently than those in countries like Germany, this is due to the reliance on enacting and revising special criminal laws to address societal changes. This has resulted in a phenomenon described as the “hollowing out of the Penal Code” and the prioritization of special criminal laws over the general Penal Code. While a comprehensive reform of the Penal Code is necessary to address its inadequacies, obstacles such as a lack of legislative will and the coexistence of numerous special criminal laws make such reform challenging. A phased approach of achieving ‘comprehensive reform’ through ‘continuous partial amendments’ is deemed more realistic. This approach must ensure that the overall direction and systematic structure of the Penal Code are maintained. The history of penal reform in Korea reveals that the Penal Code is highly insensitive to societal changes yet highly responsive to public sentiment, especially demands for harsher punishments. This reflects the legislature’s preference for special criminal laws, its passivity in addressing shifts in public perception, and its political responsiveness to public opinion. To achieve meaningful reform in the criminal justice system, these legislative characteristics must be addressed. Additionally, in an ‘era of legislative overflow’, the roles of courts and the Constitutional Court are becoming increasingly critical in managing this phenomenon.