헌법에 비추어 본 형사실체법의 문제점과 개선방안

• 영문명: Problems and Improvement Plan of Substantive Criminal Law in the Light of Constitution
• 발행기관: 한국형사법학회
• 저자명: 허일태(Hoh Il-Tae)
• 간행물 정보: 『형사법연구』형사법연구 제25권, 1~26쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.06.01

영문 초록

  The current substantive criminal law maintains substantial ethicism, heavy punishment and national paternalism-oriented characteristics. The criminal law as well as the special criminal law upholds the capital punishment and imposes a sentence of life imprisonment too much. It also unexceptionally aggravate the punishment for ascendant crime and article 37 of the Constitution upholds aggravated punishment for repeated offenses and excessive national paternalism so that it does not completely liquidate the vestige of the ethical criminal law including adultery. It also creates circumstances to mass-produce too many ex-convicts because the criminal law handles the socially deviating behavior corresponding to detention or fine. Moreover, the number of criminal cases punished by a lot of the special criminal laws including the National Security Law is more than that by the fundamental criminal law.
  The amended criminal law in 1995 accepted only a little part of the idea to make Korean criminal law reflect the spirit of the Constitution, which was emphasized repeatedly at the early stage of the criminal law amendment beginning in 1985. Fortunately, the substantive criminal law has been reformed as a part of the judicial reform started in fall, 2003. The Presidential Commission on Judicial Reform from November 2003 to December 2004 suggested that each special criminal law should be improved on the basis of the appropriate examination of an offense, the punishment system be reestablished reasonably, and the scheme be devised for the proper and fair examination of an offense by securing enough materials of the examination of an offense. The Presidential Commission on Judicial Reform, which started its activity on January 2004 based on this suggestion, and the Ministry of Justice reached an agreement to create the Substantive Criminal Law Improvement Task Force which is in operation now. However, even the detailed tentative plan is not drawn up yet.
  The basic approaches of the substantive criminal law amendment should be to realize the spirit of the Commandment and to improve the criminal and penalty system to meed the demand of the criminal policy. Realizing the spirit of the Commandment means that the criminal law is based on individualism, responsibilism and constitutionalism, not nation first, consequentialism and arbitrary rule, in order to protect human dignity and value guaranteed by the Constitution. As the criminal law should be established on the foundation of such a basic spirit, the following principles should be observed.
  First, the freedom and dignity of an individual should be guaranteed more than any other rights. The human dignity and value should not be violated for the social value or national purpose. And the freedom of an individual should not be restricted in any forms except for the inevitable case to protect the public interests in the social life. Therefore, it is reasonable that the state restrains the intervention of the criminal law except the inevitable case to protect the social life, not intervene every infringement on the benefit and protection of the law on the pretext of protecting people.
  Second, the criminal law should have the principle of responsibilism. Responsibility should be based on the criminal law, and the penalty and responsibility have to maintain the proportional relationship in order to avoid the excess punishment. The close examination of the current law reveals that it is not perfect in the light of responsibilism. It is difficult to conclude consequentialism is not completely eliminated from the criminal law in that it maintains the provision of a habitual criminal, and the accidental and deliberate offenses with serious consequences are sentenced to the same punishment regarding the offense aggravated by consequence. The provisions where crime and punishment are not balanced are seen here and there.

목차

Ⅰ. 문제의 제기
Ⅱ. 형사실체법에 구현되어야 할 헌법정신과 내용
Ⅲ. 헌법에 비추어 본 형사실체법의 문제점과 개선방안
Ⅳ. 결론
[Abstract]

키워드

형사실체법(the substantive criminal law) 헌법정신(the spirit of the Constitution) 특별형법(the special criminal law) 책임주의(responsibilism)