형사실체법 정비를 위한 근본적 고찰

• 영문명: A Thorough Examination For Improvement of Criminal Substantive Laws
• 발행기관: 한국형사정책학회
• 저자명: 허일태(Hoh Il-Tae)
• 간행물 정보: 『형사정책』형사정책 제18권 제1호, 397~433쪽, 전체 37쪽
• 주제분류: 사회과학 > 정책학
• 파일형태: PDF
• 발행일자: 2006.06.01

영문 초록

  A modern state pursues enactment and application of the criminal substantive laws that limits the scope of intervention of punishment against socially deviating conducts by means of thoroughly complying with the principles of constitutional state. The principles of constitutional state means the fundamentals of society which ensure that, for the purpose of preserving the human dignity, the guidelines of conduct to be abided by a citizen in his/her life are established in the form of law and the state authorities are formed and exercised on the basis thereof. The philosophical foundation of the principles of constitutional state may be found in the efforts, on the one hand, to create such living environment that preserve justice and, on the other hand, to secure the human dignity through purifying power phenomena that may arise inevitably in the course of state activity by virtue of separation of powers and legislations based upon lawfulness and legitimacy. From the criminal judicial law perspective, the principles of constitutional state may be construed to realize the dignity of citizen as those principles give rise to definiteness, predictability and legal safety with respect to the enforcement of criminal judicial law by way of appropriate control over the criminal law. If the state authority fails to suggest the requirements for preservation of the principles of constitutional state or, even if is suggests such requirements, the proper fulfillment of the requirements is impossible, it is nothing but uncontrolled self-indulgence, develops to uncontrolled exercise of punishment rights, and finally results in interference with fundamental rights of citizens, which must be avoided.
  As a punishment is by nature a symbol of price for a committed crime and carries in essence irresistible pains for the purpose of preventing crimes, the state that is supposed to protect human rights has obligation to use the punishment as the last resort only for preserving social orders to the extent that the offender"s liability reaches because those pains always concur with chance of serious violation of human rights. Because of this distinctive point of punishment, the nature of crime that is the prerequisite to the execution of punishment shall be limited to those evils never accepted by society and those socially material interferences of benefit and protection of the law against which any other remedies than punishment has no effect.
  In many provisions under the criminal substantive laws, capital punishment and life imprisonment are provided for as the law-providing punishment, and further, the law-providing punishment has a broad scope of applicability when it comes to freedom punishment. Excessive attachment to severe sentence may be fatal to the preservation of prisoner"s fundamental rights and leave some room for recognizing overbroad extent to which the judiciary"s authority to select sentence. Especially, there"s a trend to impose excessively severe punishment upon the infringement of state-related benefit and protection of the law, which is not desirable. Thus, the idea of severe sentence must be overruled on the ground there"s no doubt that a state is merely an apparatus to be used for protecting fundamental rights of individual peoples and each people shall never be belongs to be used for ensuring existence of the state.
  As a punishment has significant effect, there must be efforts to seek such steps that extremely control the imposition of excessive punishment. In order to do that, the ideas to increase the punishment sympathy must be taken into account in the revised criminal law. The reason is that people who are accustomed to violent life style would rarely be affected by violence as they have become immune to minor violence whereas people living in the society free from violence tend to show sensitive response to such minor violence, and

목차

Ⅰ. 문제의 제기
Ⅱ. 형벌의 본질과 있어야 할 형사실체법 정비의 이념
Ⅲ. 형사실체법에서 가벌적 범죄행위의 윤곽과 정비방안
Ⅳ. 형벌 규정의 정비
ABSTRACT

키워드

형사실체법 헌법정신 형사특별법 형법 최후수단성 the criminal substantive law the principles of constitutional state criminal special law the criminal law ultimaratio