Supreme Court: "If Punishment Rules Change Favorably, New Law Must Always Apply"… Precedent Changed After 60 Years

Abolishment of the 'Donggi Theory' Adopted in 1963

Supreme Court Grand Bench.
Photo by Supreme Court

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Supreme Court has ruled that when criminal punishment provisions are amended in favor of the defendant, the more favorable new law must always be applied regardless of the motivation behind the legislative amendment.

The Supreme Court had long maintained the so-called "motivation theory (動機說)," which interprets Article 1, Paragraph 2 of the Criminal Act?establishing the principle of prioritizing favorable new laws?as applying the favorable amended law only when the amendment was made due to reflective considerations that previous punishments were unjust or excessively harsh, or due to changes in legal views following the 1963 legislative amendment. In cases of amendments due merely to changes in factual circumstances, the previous law was applied. However, this precedent has now been overturned after 60 years.

Rejection of Motivation Theory That Applied Favorable New Laws Only When Amendments Were Due to Reflective Considerations

The Supreme Court en banc (Presiding Justice Lee Dong-won) on the 22nd overturned the lower court’s sentence of 2 years and 10 months imprisonment in the appeal trial of Mr. A, charged with violating the Road Traffic Act (drunk driving) and other offenses, and remanded the case to the Seoul Western District Court.

The court stated, "When the criminal penalty provisions applicable at the time of the criminal act itself, or laws authorized or delegated from them, are amended after the criminal act so that the act no longer constitutes a crime or the penalty is reduced, the amended law must be applied in principle according to Article 1, Paragraph 2 of the Criminal Act and Article 326, Item 4 of the Criminal Procedure Act, without considering whether the amendment was motivated by reflective considerations that the previous law unjustly criminalized the act or imposed excessive punishment, and the new law favorable to the defendant (law at the time of trial) must be followed."

Furthermore, the court added, "Contrary to this, the previous Supreme Court precedents that followed the so-called motivation theory?applying Article 1, Paragraph 2 of the Criminal Act and Article 326, Item 4 of the Criminal Procedure Act only when the motivation for the amendment was reflective considerations that the previous punishment was unjust or excessive?are all overturned."

Regarding this case, the court pointed out, "The act of a person with a prior violation under Article 44, Paragraph 1 of the Road Traffic Act driving an electric kickboard while intoxicated, as alleged in this indictment, was punishable under the former Article 148-2, Paragraph 1 of the Road Traffic Act with imprisonment from 2 to 5 years or a fine between 10 million and 20 million won before the amendment. However, after the amendment, it falls under Article 156, Item 11 of the Road Traffic Act, punishable by a fine of up to 200,000 won, detention, or a surcharge." This clearly constitutes a case where the penalty was reduced due to an amendment of the criminal penalty provisions themselves, so Article 1, Paragraph 2 of the Criminal Act must be applied without considering whether the previous law was amended due to reflective considerations," the court emphasized.

It continued, "The part of the lower court’s judgment concerning this indictment falls under 'cases where the penalty is changed after judgment' as per Article 383, Item 2 of the Criminal Procedure Act and thus cannot be maintained any longer." Therefore, "the part of the lower court’s judgment concerning this indictment must be overturned. Since this part was sentenced together with other parts recognized as guilty under the concurrent offense rule of Article 37 of the Criminal Act, the entire lower court judgment must be overturned," the court explained as the reason for remand.

As grounds for changing its view, the court cited: ▲ the need to interpret Article 1, Paragraph 2 of the Criminal Act and Article 326, Item 4 of the Criminal Procedure Act properly based on their wording, which clearly indicates that when laws are amended favorably to the defendant after the crime, the law at the time of trial favorable to the defendant applies rather than the law at the time of the act; ▲ the difficulty in finding grounds to differentiate the application of these provisions based on whether the amendment was motivated by reflective considerations, contrary to the clear wording; ▲ the previous Supreme Court precedents set additional application requirements not found in the text, amounting to a purposive restrictive interpretation, but restrictive interpretations of provisions favorable to defendants should be minimized and limited to reasonable extents; ▲ the legislature can provide transitional provisions to maintain punishment under previous laws even after amendments; and ▲ considering the wording and legislative intent of Article 1 of the Criminal Act, the term "amendment of laws" in Article 1, Paragraph 2 of the Criminal Act and Article 326, Item 4 of the Criminal Procedure Act refers to amendments involving changes in criminal law perspectives on punishability.

Road Traffic Act Amended Favorably During Second Trial, Implemented After Second Trial Judgment

Mr. A was indicted on charges including fraud and violation of the Electronic Financial Transactions Act as a money withdrawal accomplice in a voice phishing scheme, and violations of the Special Act on Traffic Accident Handling (injury caused by unlicensed or drunk driving) and the Road Traffic Act (unlicensed driving and drunk driving).

In the Supreme Court, the issue centered on Mr. A’s violation of the Road Traffic Act (drunk driving) for riding an electric kickboard with a blood alcohol concentration of 0.209% on a road near Giheung-gu Office in Yongin City on January 5, 2020, with a prior record of drunk driving.

While Mr. A was appealing after being convicted in the first trial, the Road Traffic Act was amended, and the amended law was implemented after the second trial judgment was delivered.

The prosecution charged Mr. A under the pre-amendment Article 148-2, Paragraph 1 of the Road Traffic Act for drunk driving on an electric kickboard.

At that time, the statutory penalty was imprisonment from 2 to 5 years or a fine between 10 million and 20 million won.

However, after the second trial judgment was delivered, the amended Road Traffic Act introduced new definitions for "personal mobility devices" such as electric kickboards and "bicycles, etc." under Article 2, Items 19-2 and 21-2.

According to the amended law, drunk driving on personal mobility devices like electric kickboards is no longer subject to Article 148-2 of the Road Traffic Act, which applies to "motor vehicles, etc.," but falls under Article 156, Item 11, which applies to "bicycles, etc."

The statutory penalty was drastically reduced to a fine of up to 200,000 won, detention, or a surcharge.

The Criminal Act Generally Applies the Law at the Time of the Act... Exceptionally Applies the New Law if Favorable

Article 1, Paragraph 1 of the Criminal Act (Establishment and Punishment of Crimes) establishes the principle of applying the law at the time of the act, stating, "The establishment and punishment of crimes shall be according to the law at the time of the act." This is a fundamental rule on the temporal application of criminal law, reflecting the principle of legality that prohibits retroactive application of heavier penalties after the crime.

However, Paragraph 2 of the same article provides an exception, stating, "If the law is amended after the crime so that the act no longer constitutes a crime or the penalty is lighter than under the old law, the new law shall apply," thereby allowing the application of the new law favorable to the suspect or defendant.

Paragraph 3 states, "If the law is amended after the judgment is finalized so that the act no longer constitutes a crime, the execution of the sentence shall be exempted."

Article 326, Item 4 of the Criminal Procedure Act (Judgment of Dismissal) stipulates that when the penalty is abolished due to a change in law after the crime, a judgment of dismissal shall be rendered.

On this day, the court stated, "Article 1, Paragraph 2 of the Criminal Act and Article 326, Item 4 of the Criminal Procedure Act must be applied as is unless the legislature provides transitional provisions maintaining criminal punishment under the previous law after the amendment."

The court also added, "Even when criminal penalty provisions delegate or authorize certain elements of the offense to regulations such as notifications rather than statutory ordinances, as long as these regulations do not exceed the limits of delegated legislation, they function to supplement the law. Therefore, if changes in these regulations result in the act no longer constituting a crime or the penalty being lighter, Article 1, Paragraph 2 of the Criminal Act and Article 326, Item 4 of the Criminal Procedure Act apply similarly."

However, the court clarified, "If laws other than the criminal penalty provisions themselves or those authorized or delegated from them are amended, Article 1, Paragraph 2 of the Criminal Act and Article 326, Item 4 of the Criminal Procedure Act apply only when the amendment constitutes a change in criminal law perspectives directly related to the establishment and punishment of the crime under the relevant criminal penalty provisions. Amendments to unrelated laws that affect the punishability of the criminal penalty provisions do not trigger the application of these provisions."

Furthermore, "If a law with a fixed validity period (so-called temporary law) loses effect after the expiration of that period, this does not constitute a change in law under Article 1, Paragraph 2 of the Criminal Act and Article 326, Item 4 of the Criminal Procedure Act," the court added.

In conclusion, the Supreme Court’s position is interpreted as follows: When the law containing criminal punishment provisions itself is amended, or when regulations such as notifications specifying punishment details under higher laws are amended, the favorable new law must always be applied regardless of the reason for the amendment. However, when 'other laws' are amended, the new law applies only if the amendment is based on changes in criminal law perspectives. In the case of temporary laws with validity periods, crimes committed during the validity period must be punished under the existing law even if the law is later amended favorably.

Dissenting Opinions and Significance of This Ruling

Meanwhile, Justices Cho Jae-yeon and Ahn Cheol-sang issued a dissenting opinion stating, "While agreeing with the majority that this case involves a fundamental change in the criminal penalty provisions themselves and thus the lower court’s application of the law at the time of the act cannot be upheld, other types of cases should be judged individually based on balanced interpretations grounded in this basic legal principle. Therefore, the majority’s statements on exceptional types not directly related to this case are inappropriate."

Justices Noh Tae-ak and Chun Dae-yeop also dissented, agreeing with the majority that the lower court’s judgment must be overturned because this case does not involve issues of validity periods of laws, but disagreeing with the majority’s ruling that when a temporary law with a specified validity period expires, the law at the time of the act must be applied uniformly.

A Supreme Court official stated, "This ruling abandons the long-standing precedent legal theory (the so-called motivation theory) formed and maintained since the 1960s regarding the criteria for deciding the applicable law between the law at the time of the act and the law at the time of trial when laws are amended favorably to the defendant, and presents a new legal principle."

The official added, "This ruling provides clearer and more predictable criteria and methods for deciding the applicable law when laws are amended, based on the wording of the law, and presents specific legal principles applicable to representative cases. This secures legal stability and predictability for offenders and prevents arbitrary legal interpretations by administrative and judicial authorities, thereby substantially realizing the rule of law, which is the significance of this ruling."

This content was produced with the assistance of AI translation services.