특정범죄가중처벌 등에 관한 법률에서의 ‘부진정가중처벌조문’의 적용에 관한 검토 - 헌법재판소 2014. 4. 24. 선고 2011헌바2 전원재판부결정 [특정범죄 가중처벌 등에 관한 법률 제11조 제1항 위헌소원]*의 평석을 겸하여 -

Abstract

Constitutional Court of Korea decided a important decision over relationshipbetween general law and special law in a adjudication on a constitutionalcomplaint(2011HUN-BA2, April 24. 2014). In the case was defendantprosecuted and convicted with aggravated punishment provision of THE ACTON THE AGGRAVATED PUNISHMENT, ETC. OF SPECIFIC CRIMES. Underthis provision shall be punished who commits a trade as reffered to in theAct on the Control of Narcotics and Other Analogous Substances. GeneralLaw (the Act on the Control of Narcotics and Other Analogous Substances)and special law (THE ACT ON THE AGGRAVATED PUNISHMENT, ETC. OF SPECIFIC CRIMES) conduct for punishment same, only special lawwrites tougher punishment. The Legislature is invested with the broad discretion on the punishment ofcrimes: the Legislature determines the types and degree of criminalpunishment under the comprehensive considerations including the nature ofcrime, benefit and protection of the law, culture and history of our society,circumstances upon the enactment, values and legal consciousness of thecitizens, and criminal policy issues. Therefore, the statutory punishment of acrime would not violate the Constitution unless it clearly violates theprinciple of equality or the principle of proportionality of the Constitution bylosing the balance in criminal punishment system for its excessive cruelty orby exceeding the constitutional limit in achieving its own purpose andfunction. Nevertheless, the provision at issue violates the principle of equality underthe Constitution in that the discrimination by the provision is not reasonablyjustified. This provision follows a wrong way of legislation and can be namedto ‘false aggravated punishment provisions.’ Theme of this paper is howthese spurious regulations and indictment with these provisions are to betreated in the criminal proceedings.