限時刑法과 白地刑法의 追及效

Overtaking effect of time-limited criminal law and blank criminal law

Clause 1 in the section 1 of the Criminal Law specifies the principle that the application of the law happens in doing acts. Clause 2 in the same section specifies the principle that when there is a case of constituting no crime by the amendment of the law and lightening th punishment by the new law compared to the old one, the new one should be applied. But there is an existing problem between ‘time-limited criminal law’ and ‘blank criminal law’ in applying Clause 1 and 2. In the time-limited criminal law in force, the problem is whether the application of Clause 1 or 2 to doing acts is possible even when the law have lost its effect. In the blank criminal law, there is a problem which Clause between Clause and 2 should be applied after the amendment of the Code filling up the blank criminal law. This is called ‘the dilemma on recognizing the overtaking effect’ in dilemma ‘time-limited criminal law’ and ‘the blank criminal law’. In Korea, the majority opinion of denies the overtaking effect in the ‘time-limited criminal law’ and ‘blank criminal law’. It is denied because the new law is applied by Clause 2 in the section 1 of the Criminal Law. But the minority opinion and the judicial precedent by the Supreme Court determine the recognition of the overtaking effect by the ‘motive theory’. If the motive of amending the law is based on the change of the legal thought, the overtaking effect is not accepted by the application of Clause 2 in the section 1 of the Criminal Law. But, if the motive is based on the change of the facts, it is accepted by the application of Clause 1 in the section 1 of the Criminal Law. This study, with a viewpoint of denying the overtaking effect in the time-limited criminal law and blank criminal law, examines the theories and the precedents to show the reasonable basis that the overtaking effect should be denied.