Research Report
Study on Aligning legislations during the transitional period after its unification in Germany and its implications to Korea
Ⅰ. Backgrounds and Purposes
○ East Germany and West Germany were unified by means of incorporating East Germany into the Federal Republic of Germany. However, the criminal law of the federal Germany did not govern the entire East German territory without restrictions.
- In the case of criminal law, Article 8 of the Unification Treaty between the Federal Republic of Germany stipulates that German federal law shall be applied to the entire East German region as East Germany incorporated into German Confederation. On the other hand, the protocol of treaty explains that the confederation law may not be applied to certain criminal elements as such abortion.
- During the post-unification transitional period, there were active discussions regarding respective criminal laws that had been applied separately in East Germany and West Germany.
- The study addresses German papers and documents on the situations of legal systems in West Germany and East Germany before reunification, the harmonization of legal systems after the signing of the unification treaty, and the integration of legal systems after the completion of reunification. With outcomes of the study, we could gain insights as Korea shall prepare for consolidating laws after its reunification.
○ This study purposes to explore the process of harmonization of legal systems in East and West Germany before reunification, review efforts made toward achieving the ultimate ideology of German reunification. This study also examines pre-unification efforts made by the confederation of Germany to harmonize legal systems in East and West Germany, the specifics of legal harmonization following the immediate unification through the Unification Treaty and its supplementary provisions, and the final integration of legal systems after the completion of reunification.
- To this end, the study reviews the post-unification efforts to harmonize the legal systems of East and West Germany. Additionally, it investigates the specifics of legal harmonization based on the Unification Treaty and its supplementary provisions immediately following reunification. The study also looks into the complete integration of legal systems in East and West Germany after reunification.
Ⅱ. Major Content
○ The Unification Treaty and its protocol do not stipulate the comprehensive application of federal law in East Germany but rather state the methods of harmonizing legal systems by accommodating to some extent the existing order in the East Germany.
- The framers of the Unification Treaty did not choose the path of unilateral assimilation or absorption of legal systems; instead, they opted for legal harmonization. This choice was deemed inevitable given the circumstances of the division between East and West Germany at that time.
○ Professor Eser classified the process of harmonizing East and West German criminal laws into three stages.
- In the first stage of harmonization of criminal laws (Democratic Revolution Era to the East German People's Parliament Election), due to uncertainties about reunification, both East and West Germany focused on constitutional issues related to reunification while discussions on the integration or harmonization of legal systems were hardly carried out at this stage.
- In the second stage of criminal law harmonization (East German People's Assembly elections to the monetary union), discussions were mainly centered on the constitutional merger. In the field of criminal law, the Federal Government's Cabinet Committee on German Unification (Kabinettausschuss Deutsche Einheit) addressed the issue of assimilation of criminal law, including the abolition of the preamble to the East German Criminal Code, and necessities to revise the requirements for political crimes, equal criminal protection for private property, and the East German criminal procedure law. It also put emphasis on improving human rights protection of defendants in East Germany.
- In the third stage (Unification Alliance ~ Unification Treaty), the West German authorities actively supported merger of East and West German criminal laws, while the East German government maintained a passive stance, resulting in the implementation of different criminal laws in the two regions of East and West Germany, that is, the two sides took different stance on merger of laws. In relation to this, a debate arose as to whether to retain the more lightly defined abortion crime in the East German criminal law.
- In particular, at this stage, discussions took place regarding abortion, which were provided as a crime in both West German and East German criminal laws. There were debates about introducing provisions in the Unification Treaty related to interlocal criminal law concerning the application of abortion. The West German government, concerning that debates over whether to apply the law of the place of the act or the law of the residence in the punishment of abortion could lead to national division, decided to remove the draft provision on interlocal criminal law regulations from the preliminary annex of the Unification Treaty.
○ On October 3, 1990, according to the Unified Treaty that came into effect, East Germany was incorporated into West Germany, and through this process of absorption and unification, the general principle was established that the German Federal Law would be applied in the former East German territory.
- However, some criminal law provisions, such as abortion, are excluded from the application of federal criminal law.
- In order to apply federal criminal law to East Germany, Chapter 3, Part C of Protocol I to the Unification Treaty stipulated legislative measures to improve West German criminal law up to that time.
- In contrast, Chapter 3, Part C of the Second Protocol to the Unification Treaty ㄴstated provisions of the East German criminal law that were not abolished and would remain in effect. In addition, the Criminal Law Enforcement Act was revised to specifically apply and regulate the federal criminal law in the East German region.
○ Once unification was completed, the German confederation government needed to deal with the dual legal application situation through the Unification Treaty and its attached protocols witout delay.
- To this end, the German government promoted continuous revision of the federal criminal law right after unification was completed until the mid-1990s, and finally implements one unified federal criminal law throughout Germany.
- Article 238 (violation of independence of judges) and Article 84 (exclusion of statute of limitations for crimes against peace, humanity and human rights and war crimes) of the East German Criminal Code were also deleted in 1998 and 2002, respectively. As a result, there is currently no East German criminal law still in effect throughout Germany.
- In accordance with Article 17 of the Unification Treaty, the Criminal Lottery Act (1992), the Administrative Lottery Act (1994), and the Occupational Lottery Act (1994) were enacted and took effect.
- In order to implement the guidelines of Article 31, Paragraph 4 of the Unification Treaty, after many twists and turns, new regulations on abortion were legislated and applied uniformly to all regions of Germany starting in 1995.
- Federal criminal law was applied to deal with the crimes of the East German regime based on Article 315, Paragraph 4 of the Criminal Law Enforcement Act, which was newly established based on the Unification Treaty.
○ The merger of criminal law carried out during the transitional period of German unification provides important implications for South and North Korea as we have to prepare for reunification.
- Rather than radically merging or harmonizing the criminal law from the beginning, East and West Germany gradually and systematically integrated the criminal law. Following this process, they pursued legal clarity and legal stability by taking into account the realities of East and West German society.
- In the field of criminal law, the process of social integration has progressed through continuous assimilation.
- The merger and harmonization of the criminal legal order in Germany after unification could be characterized as a process of assimilation into the national criminal legal order governed by the rule of law and ultimately integration.
Ⅲ. Expected Effects
○ This study would help Korea prepare for aligning legal system and laws between two Koreas after reunificaiton.
- Merging and harmonizing criminal laws which were carried out during the German unification process and the improvement of individual laws could provide insights for Korea’s unified legal system.
○ This study would suggest possible approaches on how to merge and harmonize different criminal law into one.
- The process and outcomes of merging laws during the German unification would suggest practical ways and methods which Korea should refer to.