Ruling Party Raises Retroactive Application in LH Scandal, Experts Warn "High Risk of Unconstitutionality"

LH Scandal Spreads... "Must Go Beyond the Principle of Prohibition on Retroactive Application of the Constitution"
Experts Say "Creating or Increasing Punishments Also Violates the Constitution"... Actively Utilizing Existing Systems

[Image source=Yonhap News]

[Asia Economy Reporter Jang Sehee] The Democratic Party of Korea has brought up the 'retroactive application' card in relation to the Korea Land and Housing Corporation (LH) scandal, but in reality, retroactive application is difficult. This move by the ruling party is interpreted as a measure to quell the worsening public opinion. Experts point out that retroactive application may be unconstitutional according to the principle of prohibition of retroactive effect in criminal law.

Democratic Party lawmaker Lee Jae-jung said on the 8th, "Even if strong measures are made, there will be various concerns about whether retroactive legislation is possible," adding, "While increased punishment is not always the best, retroactive legislation may be possible in a quasi-retroactive manner for parts of the project that have not been completed." Yang Hyang-ja, a Supreme Council member of the same party, also said, "We need to go beyond the principle of prohibition of retroactive application in our constitution," adding, "We may need to find a hint from the Constitutional Court lawsuit on the Special Act on the Attribution of Pro-Japanese Property."

Experts point out that retroactive application of criminal penalties violates the constitution. According to Article 13 of the Constitution, the principle of non-retroactivity of criminal penalties prohibits retroactive effect of legislation in criminal law. Retroactive effect means that legal effects apply backward in time. This includes penalties such as death penalty, imprisonment, detention, disqualification, suspension of qualification, fines, detention, surcharge, and confiscation.

Professor Kim Hee-gyun of the Law School at University of Seoul stated, "According to the principle of non-retroactivity of criminal penalties, retroactive application is impossible for nine criminal penalty provisions including imprisonment and fines." He added, "If a special law creates new penalties or increases penalties, it also violates the constitution." However, he noted, "Since recovery of profits is not a criminal penalty, retroactive application may be possible depending on the purpose of other laws."

Professor Noh Dong-il of Kyung Hee University Law School explained, "Changing the law to impose disadvantages after the act has already ended constitutes prohibited retroactive legislation," adding, "The only way is to thoroughly apply the current law."

If the recovery of unjust profits related to the LH scandal is not properly carried out, public opinion is likely to worsen further. Accordingly, the government is considering measures to impose up to five times the amount on unjust profits. A government official said, "Even if retroactive application regarding acquisition is difficult, if the point at which actual disposal yields profit has not yet arrived, recovery of that profit will be possible."