行政法에 있어서의 罪刑法定主義

• 영문명: A Sdudy on the Principle of “Nullum Crimen, Nulla Poena Sine Lege” in Administrative Law
• 발행기관: 경희법학연구소
• 저자명: 李相千(Lee, Sang-Cheon)
• 간행물 정보: 『경희법학』제45권 제3호, 235~271쪽, 전체 37쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2010.09.30

영문 초록

In case of breach of public duty, the administrative punishment should be levied on the private individual concerned who has breached his public duty. There are two kinds of punishment in administrative punishment, They are administrative criminal punishment and administrative punishment against public disorder. The principle of “nullum crimen, nulla poena sine Lege” should be strictly adapted to the case in levying criminal punishment on someone, so should the spirit of the above principle be adapted to the case of levying administrative criminal punishment on. The spirit of it could be adapted by analogy to the case of levying administrative punishment against public disorder, and the disciplinary punishment or the punishment for duty performance would have a little distance from the above spririt. But it is a matter of legistlative discretion whether to levy administrative criminal punishment or administrative punishment against public disorder, thus it is unresonable that we should distinguish administrative criminal punishment from administrative punishment against public disorder and come to the conclusion “the principle of ‘nulla poena sine lege’ in administrative punishment, the principle of legal reservation in administrative punishment against public disorder. The comparison of “the principle of ‘nulla poena sine lege’ and the principle of legal reservation is not studied fully, but the two goes together in some aspects and goes cross in other ones as in the area of administrative punishment against public disorder, thus the two are in a process of logical and reasonable amalgamation. The essence of the two is the control by the National Parliament. It is unnecessary to distinguish one from the other. By the way, what is the meaning of the expression ‘one who has interests in’ in levying administrative punishment? There are no rules which illustrates the boundary of it. The Supreme Court has sentenced the case concerned with the above regulations according to the logic of ‘interests in law’ in Administrative Law. As prescribed before, the modern meaning of the principle of ‘nulla poena sine lege’ is still the realization of ‘substantial justice’. the hard core of its realization is the guaranteeing the right of freedom, by that reason the conception of the hard core of its realization should be shared with the general citizens. Eventhough the area of interpretation of law belongs to the judge, it is the way of thinking only the result of applying the law and not thinking the process of doing it that the law concerned uses the conception which the citizens in general couldn’t understand its meaning. The conception of ‘interests in law’ is thoroughly the object of thought in Administrative Law. Administrative Law itself is to harmonize public interests and private ones. The harmony of public interests and private ones goes through all Administrative Law from beginning to end. The hard core of harmony of public interests and private ones is just the conception ‘interests in law.’ The contents of ‘interests in law’ is only the criteria of scaling of interests among the interests concerned. The scaling of interests reveals itself finally through the judge’s sentence, thus it doesn’t go with the thinking criteria of the principle of “nulla poena sine lege.” Thus the logic of the Supreme Court’s case which interpretes the regulation ‘one who has interests in’ in relation with the theory of interests in law is not in harmony with the principle of clarity in the principle of “nulla poena sine lege.” This is the typical case of combining theory of criminal law and Administrative Law, the conception ‘interests in law’ doesn’t suit to the above principle of clarity. For it is too inaccurate and subtle to be regarded as the core of some conception and cann’t be shared each other between the judge and the citizens in general. We use several instrumental conceptions as

목차

l. 序論

ll. 罪刑法定主義의 內容과 現代的 意義

lll. 行政法에 있어서의 罪刑法定主義의 具現實態

lV. ‘法律上 利益’ 槪念과 罪刑法定主義

V. 刑事法理論과 行政法理論의 異質性

Vl. 맺음

키워드

행정벌 행정형벌 행정질서벌 죄형법정주의 징계벌 집행벌 이익형량 법률상 이익론 명확성의 원칙 administrative punishment administrative criminal punishment administrative punishment against public disorder the principle of“nulla poena sine lege” disciplinary punishment punishment for duty performance scaling of interests theory of interests in law the principle of clarity.