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자료유형
학술저널
저자정보
저널정보
중앙법학회 중앙법학 중앙법학 제17집 제3호
발행연도
2015.9
수록면
175 - 197 (23page)

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It is hard to expect exactly when the unification of the Korean peninsula will happen but it definitely can happen sometime in the future. As it was the case for Germany, if the unification is to happen, it is highly likely that theNorth Korea will be incorporated into South Korea since South has higher stability in terms of politics, society, and economy.that case, the law and order that was being practiced in the North will disappear and the South Korea``s law and order will be applied to the whole Korean Peninsula. At that moment, complications may arise as how to handle the crimes that have happened in the North Korea before the unification. regarding what will be considered as the penal law that was in effect at the moment the alleged offence occurred, it is appropriate to take North Korea``s Criminal law before the unification as the applicable law for general crimes. This is because North and South have been making regulations for criminal punishment to match their distinct social characteristics and applying South``s criminal law directly to the crimes that had taken place in the past in the North is inappropriate. However, crimes of infringing internationally and legally protected rights specified in the article 8 through 14 of ``Act on punishment, etc. of crimes under jurisdiction of the international criminal Court`` should be handled by this act. From the fact that North Korea acknowledges the normativity of these international criminal laws and according to the principles of the cosmopolitanism that South Korean Criminal law follows, these crimes should be punished according to the domestic law regardless of person``s nationality, etc. For general crimes in the north region, because it is as if North Korean criminal law is suddenly substituted by South Korean criminal law, it has the same effect as the complete revision of the law. Accordingly, the crimes that North Korean criminal law had been punishing should be examined whether it needs to be punished by the South Korean criminal law as well(continuousness of illegality). If not, because it falls under ``the action does not constitute the crime`` as a result of change of law, it is no longer punishable according to the Article 1, clause 2 of the Criminal law. On the other hand, if the continuity of illegality exists, the law that is more favorable to the defendant should be applied.

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