What Becomes of the Judgment When a Penal Provision Is Changed or Loses Effect: Changes in Law under Article 1(2) of the Criminal Act and the Retroactive Effect of Decisions of Nonconformity with the Constitution on Penal Provisions

Question

Time passes between the act and the trial in a criminal case, and in the meantime the law on which punishment rests may be amended or repealed, or may lose effect by a decision of the Constitutional Court. Article 1(1) of the Criminal Act makes the constitution and punishment of a crime subject to the law in force at the time of the act. Article 1(2), however, applies the new law where, after the crime, the law is changed so that the act no longer constitutes a crime or the punishment becomes lighter than under the old law. Whether a given change falls within this exception decides the outcome.

This report addresses two questions. First, which of the following is a change of law within the meaning of Article 1(2) of the Criminal Act and Article 326, subparagraph 4 of the Criminal Procedure Act: a change to the penal statute itself; a change to a law or public notice delegated under it; a change to another law outside the penal statute; or the lapse of a period of validity that a law itself fixed? Must it still be asked, as before, whether the change was made out of reflective consideration? Second, where a decision of nonconformity with the Constitution has been rendered on a penal provision and no remedial legislation has been enacted by the amendment deadline, must the court, in a case prosecuted under that provision, render an acquittal or an acquittal on procedural grounds?

Both questions lie on a single axis: when the basis for punishment disappears or weakens, from when does that effect operate, and in which form does it appear in the operative part of the judgment, namely application of the new law, an acquittal on procedural grounds, or an acquittal? An acquittal under Article 325 of the Criminal Procedure Act is the judgment rendered where the case against the defendant does not constitute a crime or there is no proof of the facts constituting the crime, while an acquittal on procedural grounds under Article 326, subparagraph 4 is the judgment rendered where the punishment has been abolished by the amendment or repeal of law after the crime. The operative part therefore depends on whether the loss of effect is treated as retroactive or prospective.

This piece sets out the materials to be checked and the divergent interpretations within the scope of what the summary of issues, the summary of holdings and the operative part of two en banc judgments delivered in 2011 and 2022 state; it does not assess the guilt or innocence of any particular defendant. The content of the proviso to Article 47(2) of the Constitutional Court Act then in force, on which 2008Do7562 relied, now appears in Article 47(3) of the current text, marked as newly inserted on 20 May 2014, together with a proviso that, where there is an earlier decision upholding constitutionality, retroactivity extends only to the day following that decision. Article 1 of the Criminal Act also bears a notation of wholesale amendment on 8 December 2020, so the two judgments must be read against the law in force at the time of the act and of the trial.

Material to check

First, Article 1 of the Criminal Act can be checked. Paragraph (1) provides that the constitution and punishment of a crime are governed by the law in force at the time of the act; paragraph (2) provides that, where after the crime the law is changed so that the act no longer constitutes a crime or the punishment becomes lighter than under the old law, the new law applies; and paragraph (3) provides that, where after the judgment becomes final the law is changed so that the act no longer constitutes a crime, execution of the punishment is remitted. That none of these paragraphs states the motive for the change as a requirement connects with the starting point of 2020Do16420.

Second, the provisions of the Criminal Procedure Act on acquittal and acquittal on procedural grounds. Article 325 requires an acquittal to be pronounced by judgment where the case against the defendant does not constitute a crime or there is no proof of the facts constituting the crime. Article 326 requires an acquittal on procedural grounds where there is a final judgment, where an amnesty has been granted, or where the statute of limitations for prosecution has run, and, in subparagraph 4, where the punishment has been abolished by the amendment or repeal of law after the crime. In 2008Do7562 the majority opinion relied on the former part of Article 325, and the separate opinion on Article 326, subparagraph 4.

Third, the provisions of the Constitution and the Constitutional Court Act on decisions of unconstitutionality. Article 111(1), subparagraph 1 of the Constitution places adjudication on the constitutionality of statutes upon the request of the courts within the jurisdiction of the Constitutional Court, and Article 113(1) requires the concurrence of six or more Justices for a decision that a statute is unconstitutional. Article 45 of the Constitutional Court Act provides that the Constitutional Court decides only whether the statute or statutory provision referred to it is unconstitutional. Article 47 provides, in paragraph (1), for the binding force of a decision of unconstitutionality; in paragraph (2), for loss of effect from the date of the decision; in paragraph (3), for retroactive loss of effect of a statute or statutory provision relating to criminal punishment and the limitation of retroactivity where there is an earlier decision upholding constitutionality; and in paragraphs (4) and (5), for retrial of final judgments of conviction.

Fourth, Articles 10 and 23 of the Assembly and Demonstration Act. The current Article 10 provides that no one shall hold an outdoor assembly or demonstration before sunrise or after sunset, while its proviso allows the head of the competent police agency to permit an outdoor assembly subject to conditions; Article 23, subparagraph 1 punishes an organiser who violates the main text of Article 10, among others, by imprisonment with labour for not more than one year or a fine not exceeding KRW 1 million. The current text bears a notation of the decision of nonconformity with the Constitution of 24 September 2009, together with wording that those provisions continue to apply until amended, with 30 June 2010 as the deadline, and a notation of the decision of limited unconstitutionality of 27 March 2014 concerning the part on demonstrations; the wording of the main text remains unchanged.

Fifth, the relevant provisions of the Road Traffic Act. In the text retrieved, Article 2, subparagraph 19-2 defines a motorised bicycle meeting certain requirements as a personal mobility device, and subparagraph 21-2 defines bicycles and personal mobility devices as bicycles, etc.; Article 44(1) prohibits driving motor vehicles, etc., trams or bicycles while under the influence of alcohol. Article 148-2(1) imposes aggravated punishment for repeat drunk driving, but its parenthetical limits this to driving motor vehicles, etc. or trams and excludes driving a personal mobility device; Article 156, subparagraph 11 punishes a person who drives bicycles, etc. while under the influence of alcohol by a fine not exceeding KRW 200,000, penal detention or a minor fine. The facts of 2020Do16420 span the periods before and after this definition provision was inserted.

Sixth, factual materials. In a change-of-law case, the following are needed: the date of the act; the date the prosecution was instituted; the date of judgment at each instance; the promulgation and enforcement dates of the amended law; whether the addenda contain a transitional provision maintaining punishment for prior acts; the amendment history of any delegated public notice or ordinance; and whether the law itself fixed a period of validity. In a nonconformity case, the following can be aligned chronologically: the date the decision was rendered; the continued-application wording in the operative part and the time of loss of effect stated in the reasoning; the amendment deadline and whether remedial legislation was enacted; the order of the date of the judgment below and the date of the decision; and the applicable provisions stated in the indictment.

Possible readings

As to changes in law, the earlier reading was understood to apply Article 1(2) of the Criminal Act only where a change, even one lightening the punishment, was made out of reflective consideration that punishment under the former law had been unjust or the sentence excessive, and to apply the law at the time of the act to any other change. The majority opinion in 2020Do16420 abandoned this standard, holding that where, by a change to the penal statute itself or to a law delegated under it, the act no longer constitutes a crime or the punishment becomes lighter, the new law applies in principle without examining reflective consideration, and that if punishment is to be maintained, the legislature must provide a transitional provision. The weight of the determination thus shifted from the court's examination of motive to the legislature's transitional provisions.

The majority opinion, however, imposed a limitation where a law other than the penal statute or a delegated law changes and affects punishability: the change must be one whose principal basis is a change in criminal-law perspective directly related to the constitution and punishment of the offence concerned. Readings may diverge as to whether this standard is clearer than the reflective-consideration standard. The separate opinion of Justices Cho Jae-youn and Ahn Chul-sang agreed with the basic principle of a change in criminal-law perspective, but considered that the majority opinion's fixing of uniform conclusions by category restricts the possibility of balanced interpretation in individual cases.

As to the lapse of a period of validity, the majority opinion held that where a law that itself specified its period of validity by a concrete date or period, thereby anticipating its loss of effect, loses effect upon the lapse of that period, this is not a change of law. The separate opinion of Justices Noh Tae-ak and Chun Dae-yeop considered that, from the perspective that the penal statute has changed in the defendant's favour, there is no essential difference between amendment or repeal and the lapse of a period of validity, so that, absent a transitional provision on continued effect, the law at the time of trial must apply. Whether an anticipated loss of effect is to be regarded as a change in the legislature's judgment separates the two readings.

As to the effect of a decision of nonconformity with the Constitution, the majority opinion in 2008Do7562 held that a decision of nonconformity is also a decision of unconstitutionality and that a decision of unconstitutionality on a penal provision causes it to lose effect retroactively, so that, even though the Constitutional Court had prescribed continued application until the amendment deadline and loss of effect on the day after the deadline, there is no room for a different interpretation and an acquittal must be rendered. The separate opinion of Justices Ahn Dae-hee, Shin Young-chul and Lee In-bok considered that the courts must also respect the Constitutional Court's judgment that excluding retroactive effect was unavoidable and its resulting decision of nonconformity ordering provisional application, and that, since that decision was intended to cause the provision to lose effect from the day after the amendment deadline expired, an acquittal on procedural grounds must be rendered.

Placing the two judgments side by side distinguishes two routes by which the basis for punishment weakens. Where the legislature changes the law, the structure under Article 1(2) of the Criminal Act is to apply the new law to cases pending at trial or, if the punishment has been abolished, to render an acquittal on procedural grounds. Where the Constitutional Court decides that a penal provision is unconstitutional, the structure is that, by retroactive loss of effect, the act never constituted a crime. How the proviso to Article 47(3) of the current Constitutional Court Act, which limits retroactivity to the day following an earlier decision upholding constitutionality where there is one, affects the boundary between acquittal and acquittal on procedural grounds in nonconformity cases is a point to be revisited together with the changes in law since 2008Do7562.

Which reading to adopt is for the reader to decide after aligning the date of the act, the enforcement date of each law, the presence or absence of transitional provisions, the operative part and deadline of the Constitutional Court decision, and the date of judgment at each instance. This piece does not determine the operative part in any particular case; it confines itself to setting out the branches of interpretation and the points of comparison that the holdings of the two judgments have separated.

What the decisions held

The majority opinion in Supreme Court en banc Judgment 2020Do16420 delivered 22 December 2022 held that Article 1(2) of the Criminal Act and Article 326, subparagraph 4 of the Criminal Procedure Act must be applied as they stand unless the legislature separately provides a transitional provision, stating: "Where, by a change to the penal statute itself that prescribes the constitution and punishment of a crime, or to a law to which authority has been conferred or delegated by it, the act no longer constitutes a crime or the punishment becomes lighter, Article 1(2) of the Criminal Act and Article 326, subparagraph 4 of the Criminal Procedure Act apply in principle, without examining whether the change was made out of reflective consideration that the former law's designation and punishment of the act as a crime was unjust or that the sentence was excessive." It held that the same applies where a penal statute delegates part of the constituent elements to administrative rules or administrative orders such as public notices, or to ordinances and the like, as long as those provisions do not exceed the limits of delegated legislation.

The same judgment held that where another law is changed, "since it must constitute a change of law whose principal basis is a change in criminal-law perspective directly related to the constitution and punishment of the crime under the relevant penal statute," those provisions do not apply to a change unrelated to this; it also held that the lapse of the period of a law that itself specified its period of validity, thereby anticipating its loss of effect, does not constitute a change of law. The two separate opinions agreed with the basic position of a change in criminal-law perspective, but one opposed the uniform conclusions by category and the other opposed the part on the lapse of a period of validity.

In that case, a defendant with a prior record of punishment for drunk driving was prosecuted for riding an electric kick scooter while under the influence of alcohol. After the judgment below was delivered, the amended Road Traffic Act came into force, inserting a definition provision on personal mobility devices, so that such drunk driving was excluded from the scope of Article 148-2 and Article 156, subparagraph 11 applied instead, lightening the statutory punishment; there was no separate transitional provision. The judgment held that this clearly constituted a case in which the punishment became lighter by amendment of the penal statute itself, so that the defendant could be punished only under the new law, Article 156, subparagraph 11 and Article 44(1); the judgment below was reversed, and the case was remanded to the Seoul Western District Court.

The majority opinion in Supreme Court en banc Judgment 2008Do7562 delivered 23 June 2011 held that "a decision of nonconformity with the Constitution by the Constitutional Court, although a modified form not provided for in the Constitution or the Constitutional Court Act, constitutes a decision of unconstitutionality on a statutory provision," and that, since the prohibition of night-time outdoor assemblies and the provision punishing it together form a statutory provision relating to criminal punishment, the decision of nonconformity on them is a decision of unconstitutionality on a statutory provision relating to criminal punishment. It went on to state: "Where a statutory provision relating to criminal punishment loses effect retroactively, a case against the defendant in which the prosecution was instituted by applying that provision falls under the case where it does not constitute a crime, and the court must render an acquittal in respect of it under the former part of Article 325 of the Criminal Procedure Act." The separate opinion considered that, since the provision lost effect from the day after the amendment deadline expired, an acquittal on procedural grounds must be rendered under Article 326, subparagraph 4 of the Criminal Procedure Act. In the operative part, the part concerning Defendant 1 was reversed and remanded to a collegiate panel of the main court of the Busan District Court, and the appeals of Defendant 2 and Defendant 3 were dismissed.

Practical checklist

This section is not advice but a set of questions that may be asked when checking the record. First, one may ask what was changed. Whether what changed was the penal statute itself that prescribes the constituent elements and the punishment, an enforcement decree, public notice or ordinance delegated under it, another law outside the penal statute, or the lapse of the period of a law that itself fixed its period of validity can be confirmed from the legislative history.

Second, one may ask about transitional provisions. Whether the addenda to the amended law contain a transitional provision maintaining punishment for prior acts, if so whether its wording covers the act in question, and how the statutory punishments under the new and old law compare can be checked against the addenda and a comparative table of provisions.

Third, if another law was changed, one may ask about the basis for that change. It can be confirmed whether the reasons for amendment and the legislative materials cite, as the principal basis, a change in criminal-law perspective concerning the constitution and punishment of the offence concerned, or whether a change made for some other administrative purpose merely ended up affecting punishability.

Fourth, one may ask about the timetable of the Constitutional Court decision. Whether the operative part of the decision is one of simple unconstitutionality or of nonconformity with the Constitution, whether it ordered continued application, the amendment deadline and whether remedial legislation was enacted by then, whether there was an earlier decision upholding the constitutionality of the provision concerned, and the order of the decision and the judgments at each instance can be aligned date by date. This is no more than a list of materials to check; the conclusion is for the reader to draw.

Glossary

Reflective consideration refers to the standard of earlier case law that asked whether a law was changed out of the legislature's reflection that punishment under the former law had been unjust or the sentence excessive. The majority opinion in 2020Do16420 held that this is not examined where the penal statute itself or a delegated law is changed.

A transitional provision is a provision in the addenda that, upon amendment of a law, determines whether the former or the new provision applies to acts or cases predating the amendment. 2020Do16420 proceeded on the premise that, if punishment is to be maintained, the legislature must separately provide one.

An acquittal on procedural grounds (myeonso) is a judgment rendered where a ground prescribed in Article 326 of the Criminal Procedure Act exists, and is understood to end the proceedings without entering into a substantive determination of guilt or innocence. The abolition of the punishment by amendment or repeal of law after the crime is the ground in subparagraph 4, and it is distinguished from an acquittal where the act does not constitute a crime.

A decision of nonconformity with the Constitution is a decision that, while confirming that a statutory provision violates the Constitution, is rendered in a form different from simple unconstitutionality, for example by fixing the time at which the provision loses effect or ordering its continued application until remedial legislation is enacted. The majority opinion in 2008Do7562 regarded it as a type of decision of unconstitutionality.

Sources and limitations

The sources of the provisions are the original texts at the Korea Law Information Center. Article 1 of the Criminal Act is cited as of [Enforcement date: 2 October 2026] Act No. 22007; Articles 325 and 326 of the Criminal Procedure Act as of [Enforcement date: 2 October 2026] Act No. 22009; Articles 45 and 47 of the Constitutional Court Act as of [Enforcement date: 12 March 2026] Act No. 21452; Articles 10 and 23 of the Assembly and Demonstration Act as of [Enforcement date: 2 October 2026] Act No. 22018; and Articles 111 and 113 of the Constitution of the Republic of Korea as of the Constitution wholly amended on 29 October 1987. Articles 2, 44, 148-2 and 156 of the Road Traffic Act are cited from the original text displayed in the search results as [Enforcement date: 14 April 2027] Act No. 22067, and may therefore differ from the wording in force on the date of checking. The date of checking is 16 October 2026.

The sources of the judgments are the summary of issues, the summary of holdings and the operative part of the two judgments published at the Korea Law Information Center. The quoted holdings reproduce the original wording, and the defendants' prior records and the details of the charged facts are not stated beyond what appears in the summary of holdings.

This piece did not check the original texts of the Road Traffic Act, the Assembly and Demonstration Act and the Constitutional Court Act in force at the time of the acts and of the trials, the full texts of the Constitutional Court decisions referred to in the two judgments, the full reasoning of the judgments, or the lower-court judgments. The list of earlier precedents overruled by 2020Do16420 and the full texts of each separate opinion are also outside the scope of checking in this piece.

Points left open

How the criterion that a change in other statutes is grounded primarily on a change in the criminal law perspective is discerned in actual cases remains an open question. Where the reasons for amendment describe several purposes together, or where legislative materials are scarce, Summary of Decision did not determine what shall serve as the basis for the determination.

Who contests, and how, in a criminal trial, whether an amendment to a notified public notice or ordinance adopted under delegated authority exceeds the limits of delegated legislation is a continuing issue. If it is an amendment to a public notice that exceeds those limits, the question whether it may serve as grounds for application of the new law, and whether that determination operates in favor of the defendant or to the defendant's disadvantage, may vary from case to case.

With respect to the retroactive effect of a decision of nonconformity with the Constitution, whether the majority opinion in 2008Do7562 remains intact even after the proviso to Article 47 (3) of the current Constitutional Court Act was introduced, and whether not guilty or dismissal of charges shall be pronounced for acts preceding a decision of nonconformity with the Constitution rendered against a penal provision that had previously been held constitutional, are matters to be confirmed by subsequent judgments.

What difference the distinction between not guilty and dismissal of charges produces in subsequent procedures such as criminal compensation or retrial is also a matter to be examined together. The Summary of Decision of the two judgments do not address these subsequent effects, and must therefore be separately cross-checked against the text of the relevant statutes.

When to reconsider

This report will be rewritten if Article 1 of the Criminal Act, Articles 325 and 326 of the Criminal Procedure Act, and Article 47 of the Constitutional Court Act are amended, or if a new determination of the Supreme Court emerges concerning the meaning of a change in statutes or the effect of a decision of nonconformity with the Constitution on a penal provision.

At that time, taking as the standard the statutes in force at the time of the conduct and the trial, the boundaries among application of the new law, dismissal of charges, and not guilty will be reorganized within the scope stated by the Holdings and Summary of Decision of the two judgments and the new judgment.

Statutes referred to

• 형법 제1조
• 형사소송법 제325조, 제326조
• 대한민국헌법 제111조, 제113조
• 헌법재판소법 제45조, 제47조
• 집회 및 시위에 관한 법률 제10조, 제23조
• 도로교통법 제2조, 제44조, 제148조의2, 제156조

Decisions referred to

• 대법원 2022. 12. 22. 선고 2020도16420 전원합의체 판결 · Decision ledger
• 대법원 2011. 6. 23. 선고 2008도7562 전원합의체 판결 · Decision ledger

Verification status

The cited provisions (Article 1 of the Criminal Act; Articles 325 and 326 of the Criminal Procedure Act; Articles 111 and 113 of the Constitution of the Republic of Korea; Articles 45 and 47 of the Constitutional Court Act; Articles 10 and 23 of the Assembly and Demonstration Act; and Articles 2, 44, 148-2 and 156 of the Road Traffic Act) were checked against the original texts at the Korea Law Information Center on 16 October 2026. The Road Traffic Act is cited from the original text displayed in the search results as [Enforcement date: 14 April 2027]. The cited judgments (Supreme Court en banc Judgment 2020Do16420 delivered 22 December 2022 and Supreme Court en banc Judgment 2008Do7562 delivered 23 June 2011) were checked against the summary of issues, the summary of holdings and the operative part in the original judgment texts at the Korea Law Information Center. The original texts of the laws in force at the time of the acts, the full texts of the Constitutional Court decisions, and the full reasoning of the judgments were not checked.