「특정범죄가중처벌 등에 관한 법률」적용상의 몇 가지 문제점과 대안

• 영문명: Several Problems in the Application of “The Law on Aggravated Punishment of Specific Crimes” and Possible Alternatives
• 발행기관: 한국형사법학회
• 저자명: 윤승은(Yun Seung-Eun) 최상욱
• 간행물 정보: 『형사법연구』형사법연구 제26권, 109~138쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.12.01

영문 초록

  Since its enactment over 40 years ago, “The Law on Aggravated Punishment of Specific Crimes” (“the Law”) has remained in the form of a special law, with its scope gradually increasing. However, there has not been a substantive review on whether the Law should be maintained in its current form. Through a careful review of whether aggravated punishment provided under the Law are in accordance with protection of legal interests provided under the criminal law and appropriately reflect the degree of criminal liability, it is necessary to reexamine and question the legitimacy of the Law.
  First, this article examines provisions of the Law that are applied rarely in practice. With respect to Article 4, Paragraph 3 of the Law, it needs to be examined whether a disclosure of confidential information by a government employee of the National Assembly’s Information Committee in the course of official business must be subject to aggravated punishment compared to illegal disclosure of alleged facts under the criminal law or disclosure of confidential information by a private citizen. Further, it needs to be questioned why only such particular group of government employees are subject to this provision of the Law, while all other government employees are subject to the regulations concerning disclosure of confidential information under the criminal law. That is, even if there is a need for aggravated punishment in such a case, one needs to question why such case would deserve maximum sentence that is twice the amount of maximum sentence applied to other government employees who illegally disclose confidential information in the course of his or her official business, as the Law current mandates. The fact that over the past 5 years, there has rarely been a judgment issued based on this provision, also suggests that a review concerning the fundamental need for the above provision is desirable.
  Similarly, with respect to Article 5, Paragraph 8, there has rarely been a court judgment applying this provision over the past 5 years, and a question arises as to why the Law specifically targets only organizations committing larceny. Under the Law, an organizer of a group that is formed for the purpose of committing repeated larceny or that may be expected to commit repeated larceny may be sentenced to over 10 years of imprisonment. Moreover, simply forming such a group may punish the organizer, even if no crime has been actually committed. Such provision need to be re-examined to see whether such aggravated punishment is appropriate in light of today’s sentencing structure.
  Article 12, imposes aggravated punishment to those who aid foreigners to violate domestic laws, such as laws restricting foreigner’s acquisition of domestic assets or property(“Foreigner Land Act”, etc.). However, even without such provision specifically designed to punish conspirators and abettors, punishment can be rendered to conspirators and abettors under the general criminal law, and pursuant to “Real-estate Registration Act of the Rightful Name”, enacted in 1995, a domestic citizen who acquires real estate for foreigners in his or her own name as a conduit can be criminally punished. Moreover, it is questionable whether a domestic person who aids foreigner’s illegal acquisition of domestic property should be subject to more aggravated punishment than the foreign acquirer, and it needs to be examined whether it is justifiable to base the minimum sentencing amount to the value of the acquired assets. It would be more sensible to include such provision for punishment of domestic abettors in the relevant law itself along with provision for punishment of foreign principals.
  Next, the article examines the provision of the Law relating to bribery, which has been subject to many amendments. Article 2 stipulates that the amount of the minimum sentence shall be established based on the amou

목차

Ⅰ. 서론
Ⅱ. 본론
Ⅲ. 결론
〈Abstract〉
[토론문] : ‘「특정범죄가중처벌 등에 관한 법률」적용상의 몇 가지 문제점과 대안’에 대한 토론문

키워드

특정범죄가중처벌 등에 관한 법률 가중처벌 법정형 하한 형벌체계 “The Law on Aggravated Punishment of Specific Crimes” “Aggravated Punishment” “Minimum Sentences” “Sentencing Policies”