Korean Criminal Law: Moralist Prima Ratio for Social Control

Abstract

The fundamental framework of the Korean Penal Code has remained unchanged for half a century. However, a large number of special criminal acts armed with heavier punishments have been legislated. Since democratization, the question of whether the provisions of Korean criminal law are against "nullum crimen, nulla poena sine lege" has been taken more seriously. Arguments for the liberalization or "decriminalization" of Korean criminal law have proliferated. However, there is still a trend toward "over-criminalization", and heavier punishment is still preferred for social control. Without serious debate over the legitimacy of subjecting citizens to double jeopardy, "protective security measures" are imposed upon citizens who have already served their sentences. Criminal law is "prima ratio," not "ultima ratio," for social control in Korean society. Korean criminal law reform must attempt to perform two seemingly contradicting tasks: it must not only decriminalize the over-criminalized criminal law, it must also provide a blueprint for solving the worsening crime problem in modern Korean society.