영미형법상 죄형법정주의

The Principle of Legality in the Anglo-American Criminal Law

It is said that both the Continental Criminal Law and the Anglo-American Criminal Law have based on the Principle of Legality, but the latter is not familiar with us because there has not been any treatises or essays about that. However, the tradition of legality has been long from the beginning of the ancient western societies and the special political event, for example Magna Carta or Petition of Rights, had supported the principle. Moreover, the philosophers of Enlightenment in 18th century like Cesare Beccaria put emphasis on the legality as a first principle of criminal law. Like the Continental criminal law, the Anglo-American criminal law has based on the principle of legality. Its constitutional basis are separation of powers and Ex Post Facto, and (fair) notice and its values are fairness, liberty, democracy, and equity. The principle of legality provides that before individuals can be convicted and punished for engaging in such conduct, it must be legislatively prohibited. The constitutional doctrine of void-for-vagueness requires the criminal law to be sufficiently clear so that individuals of ordinary ability can understand what their legal obligations are. The rule of lenity requires a court to construe criminal statutes strictly, resolving doubt in favor of the defendant, but nowadays some said the principle of lenity should be defunct. In fact the Model Penal Code did not adapt the rule of lenity, instead it requires that criminal statutes be construed according to the fair import of their therms. Even though the Continental and Anglo-Amrican legal system have developed in a separate ways, the origin, theoretical basis and the contents of the principle of legality have something in common, for example Ex Post Facto, Void-for vagueness, fair notice(this has a logical connection with the written law principle in the Continental legal system), lenity and equality(this is similar to the propriety principle in the Continental legal system).