5

Korean criminal law and democratization

Cho Kuk


Introduction

Since the time of Durkheim, scholars have focused on the expressive function of criminal law, showing how law reflects the underlying basis of society. It is not surprising, then, that criminal law in Korea has been the locus of dramatic changes since democratization began in response to the nationwide "June Struggle" of 1987. This period has witnessed significant social changes as society has emerged from decades of authoritarianism. 1 Democratization has transformed Korean criminal law and procedure, which both reflects and produces social change. 2

Under the authoritarian regime, the rights enumerated in the Constitution were merely nominal, and criminal law and procedure were no more than instruments for maintaining the regime and suppressing dissidents. Criminal law was a symbol of authoritarian rule in Korea. It was not a coincidence that the June Struggle was sparked by the death of a dissident student tortured during police interrogation. 3

One of the techniques of successive authoritarian regimes in Korea was the special criminal act, passed outside the general criminal code, designed to oppress dissidents and control the people. 4 One of the major tasks of the National Assembly after democratization was to revise or repeal these acts. In 1988, the Committee for the Repeal or Revision of Acts to Advance Democracy was organized in the National Assembly to repeal or revise laws that infringed upon fundamental rights and contradicted the newly promulgated 1987 Constitution. As a result, some of the criminal special acts were revised or repealed.

This chapter reviews the major changes and continuities in criminal law since democratization, focusing on three controversial special criminal acts: the National Security Act, the Security Surveillance Act, and the Social Protection Act. 5 These acts have been significantly revised to reflect a more liberal ordering of society. However, the challenge of adjusting the criminal law to the rapidly changing social order is a continuous one, and the chapter also examines some of the issues likely to be important in the coming years, such as the moralist and male-oriented biases of Korean criminal law.

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