위법한 운전면허취소처분과 무면허운전죄의 성립

Abstract

The Supreme Court implicitly judges whether the legality or the validity of an administative decision is the preliminary consideration for a criminal trial when judging the administrative punishment especially based on a administrative decision. In particular, the Supreme Court finds that the 'legality' of the decision becomes a preliminary consideration for criminal trials only in cases of intrusive decision, and the criminal court determines the legality of the disposition from procedural illegality to abuse of discretion. The position is that a comprehensive and independent judgment can be made regarding legality, and as a result, the guarantee of the rule of law for the defendant becomes top priority, but there is a problem that it results in under-protection of the legal interests of administrative punishment. Considering the obligation to protect fundamental rights under the Constitution, administrative punishment must contribute to protect legal interests, so the scope of guarantees of the rule of law for defendants can be adjusted according to balancing or optimization principles. Therefore, here is a need to re-establish the scope of administrative decision’s validity/legality in criminal trial based on the ‘protected legal interests’ of administrative punishment. The standard for determining what protected legal interests are is a matter of examining the contents of each regulation. If an administrative decision is an positive component for the establishment of offence/crime, the protected legal interest can be found as the legal interest as such of administrative decision. If an administrative disposition is a passive component, the purpose, function, and content of the disposition will be comprehensively considered. The criminal court already internally considers the structure of statute and the protected legal interests in the process of judging whether the legality or the validity is the preliminary consideration for the criminal trial. In the process of identifying the scope of administrative decision’s validity/legality in relation to protected legal interests and examining the legitimacy of criminal punishment, the proportionality between protected legal interests and criminal punishment is clearly definded. Therefore, if the punishment is excessive compared to protected legal interests, the relevant provision is deemed unconstitutional. As a result, effective control over administrative punishment becomes possible. This ruling may be seen as confirming the position of precedents, but on the premise that the protected legal interest of driving license is recognized as 'control of risk through confirmation of knowledge of laws related to driving aptitude and skills', which is directly related to the above protective legal interest. On the other hand, since the continuous supervision function of the Police Agency is very weak, it is difficult to include the protection of the continuous supervision function in the legal interests of driving license system.