특정경제범죄법상 취업제한제도의 형벌로서의 법적 성격의 규명

Abstract

Punishment, etc. of Specific Economic Crime (also known as Specific Economic Crime Act), employment restriction has not been put to use for more than 35 years. In efforts to reduce large-scale, sophisticated financial crimes, the Korean government has announced measures to revitalize employment restriction. Revision of relevant provisions was made to expand the types of companies of which employment will be restricted. Specific Economic Offense Control Committee (SEOCC) has been set up on November, 2019 in order to deliberate and reauthorize the employment of offenders. Despite the media attention the revision has generated, employment restriction imposed on financial criminals has not been discussed in depth compared to other frequently mentioned laws such as Act on the Protection of Children and Youth Against Sex Offenses. It is important to note that financial crimes are different from other crimes such as sex offense in that ‘economic profit’ is what motivates offenders. Conventional punishments such as monetary fine are insufficient for preventing financial crimes. This is due to the fact that profits gained from these crimes are usually much larger than the fine itself. Employment restriction can be more effective since criminals are forbidden from exercising their freedom of occupation altogether. Some critics argue that employment restrictions unfairly infringe people’s freedom to choose their own jobs. This criticism is without merit, however, since all criminal punishment impinge upon offender’s basic rights one way or the other. Employment restriction is justified because it is a punishment proportionate to the offender’s guilt. The focal point of this study is to understand the legal nature of employment restriction in Specific Economic Crime Act. Beside the fact that employment restriction can be imposed without the Court’s decision (unlike ‘security measures’), legislative intent should also be referred to. The legislators of the 11th National Assembly clearly intended to design employment restriction as criminal punishment, citing “general prevention” (opposed to “special prevention”) as the main reason for legislation. Employment restriction should be understood as criminal punishment and should be kept this way. Altering it into security measure by conferring the right to decide the duration of the restriction to the Court will only exacerbate the Court’s heavy workload. Consequently, the Court may refrain from imposing employment restriction as is the case of Germany. If an individual wishes to shorten the restriction period, he or she can always apply for reauthorization (simlar to a ‘parole’). In this case SEOCC, not the Minister of Justice, should have full authority on deliberating and approving financial criminals’ applications. Also, the role and authority of SEOCC should be clearly stipulated in Specific Economic Crime Act.