However, the origin and history of law, the essence and core constituent principles and differences between criminal law and civil law, the core principles and differences between criminal and civil litigation, the nature of trials, the appearance of desirable courts and judges, the direction of prosecution reform, and the essential properties of the Constitution. There are few books that describe the limits and possibilities of the law, the implications and importance of basic rights, the principle of punishment and prohibition of excess, and how the sovereign can become the subject rather than the subject of law.
There is no need to be scared just because the items listed seem grandiose and difficult. This is because Jinhan Kim is a writer who has the talent to explain huge and difficult legal concepts and topics in a very easy and kind manner.
In search of the origin and history of the law
Kim Jin-han finds the origin of law in revenge. However, it is different from what is commonly thought of as revenge in that the subject of revenge is the state rather than the individual victim. The fact that the state monopolizes revenge, that revenge has a strong preventive nature rather than just retribution, and that the types of revenge are civil and criminal runs from the ancient Code of Hammurabi to the present.
The journey that follows the development of the law described by Kim Jin-han in “Searching for the Master of the Law” is interesting. Kim Jin-han evaluates Rome’s Twelve Tables as groundbreaking in that it is a written law created in response to the demands of common citizens and includes detailed litigation procedures and compulsory execution procedures.
According to Kim Jin-han, the reason why the Roman law of the Twelve Tables is great is because the state acted as a fair judge in disputes between people, established a court where people of different statuses could fight fairly and equally, and left specific details about this in written law. Because. The birth of the court led to the accumulation of precedents and made possible the rapid development of legal principles. The development of precedents and legal principles drove the development of written codes, including the Codex of Roman Law. Jinhan Kim does not overlook the limitations of Roman law, which developed mainly as a civil law.
also contains the achievements and limitations of the legalist represented by Han Feizi. The rule of law, as jurists such as Han Feizi refer to, is for those in power to rule and discipline the people, and it is not ‘rule of law’ but ‘rule by law.’ However, legal experts such as Han Feizi believed that even if the rule of law is for the powerful, it is important to be consistent in its application. This is a point that the Yoon Seok-yeol government should take note of.
Jinhan Kim cites lawyers who collaborated with Hitler’s Nazis as the extreme and worst examples of ‘rule by law’ or formal rule of law. The rule of law that Jinhan Kim understands is not a narrow formal rule of law, but is formed through the struggles of people who want to create better laws.
The criminal and civil worlds are different.
Jinhan Kim easily shows how the criminal and civil worlds are different in . According to Jinhan Kim, the world of civil affairs is a world dominated by private autonomy (civil law) and advocacy (civil litigation). The state does not intervene in contracts between private parties, and only acts as a fair judge in trials between private parties.
On the other hand, the world of criminals is governed by the legality of criminal punishment (criminal law) and the exclusion of illegally collected evidence (criminal litigation). In the world of criminals, the state steps in and actively exercises the state’s right to punish on behalf of victims, but the state’s exercise of the right to punish is a major infringement on the fundamental rights of individuals and must be strictly controlled by the Constitution and laws.
Over the past few years, we have been experiencing the consequences of the uncontrolled exercise of state punishment power.
The concepts that the author emphasizes most in are sentencing and the principle of prohibition of excess. Sentence will be a task of weighing various justifications and values to arrive at the optimal result. Kim Jin-han sees this sentence as an urgent task for the National Assembly, which makes the law, the president and executive branch, which is responsible for executing the law, and the judiciary, which is responsible for interpreting the law.
In particular, there is no need to say more about the importance and urgency of sentencing in a Republic of Korea that is buried in extreme factionalism and camp logic.
Ultimately, it comes down to sentencing and excessive prohibition.
The principle for determining whether the sentence is appropriate is the ‘principle of prohibition of excessiveness.’ Jinhan Kim compares the ‘principle of prohibition of excess’ to several stages of judgment that shed light from various angles. The ‘principle of prohibition of excess’ is 1. Is the purpose of the exercise of power justified? 2. Are the means appropriate? 3. Has the principle of minimal intrusion been observed? 4. Are the public interests achieved and the interests infringed balanced? It consists of 4 stages:
Even if one does not necessarily follow Kim Jin-han, modern democracy and the rule of law ultimately have no choice but to converge on the principles of sentencing and prohibition of excess. Humanity has not found better principles, standards, and methodologies.
Kim Jin-han laments that the Constitution, the highest standard of the positive law system, does not work well in reality, especially within power institutions such as legislation, administration, and the judiciary. Kim Jin-han strongly hopes that the institutions of power will be controlled by the Constitution and the fundamental rights of the sovereign will be practically implemented, but he has no illusions that constitutional amendment will solve everything. Kim Jin-han does not miss the fact that whether it is a constitutional trial or a constitutional amendment, the power to implement and maintain it in reality is only the will and capacity of the sovereign.
Nevertheless, it is noteworthy that Kim Jin-han included ‘six matters to be reflected when revising the Constitution’ in his book. These include allowing the president to serve a second term, introducing a runoff voting system for presidential elections, extending the term and retirement age of Supreme Court justices and Constitutional Court judges, allowing constitutional appeals against court trials, guaranteeing the independence of the Board of Audit and Inspection, and guaranteeing the independence of the Korea Communications Commission. There are many points to refer to.
I read that what Kim Jin-han most wanted to say through was, ‘The sovereign must live as the subject of the law, not the object, and that is how he can live.’
Democracy ultimately has its true meaning when it is ‘self-rule of the people.’ Only a sovereign who constantly studies, debates intensely, and participates diligently is qualified to become the master of the law. Otherwise, citizens have no choice but to live as subjects of the legislature, executive branch, and judiciary.
Tags: amending Constitution Korea country
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