헌법재판에서 형벌규범의 위헌성 심사 기준이 되는 명확성 원칙

Abstract

The impression I got from analyzing the decisions of the Constitutional Court was that the Constitutional Court’s decision on constitutionality and unconstitutionality was not a legal or logical conclusion, but was made while comprehensively considering all external circumstances. The flag and the white flag are all in, and I even doubt whether the magician is pulling them out properly. It makes us imagine what kind of government it was when the constitutional decision on general traffic obstruction was made, and what the political atmosphere would be like. Simple trust in the “Constitutional Court’s decision” as a result of a certain legal logic is shaking. I hope I am mistaken in the impression that the quality of our legislation, especially criminal legislation, is deteriorating markedly. In the current constitutional system, the Constitutional Court has the authority to improve the legislative process even a little by imposing appropriate restraints on irresponsible legislation, and this is also a duty. If the National Assembly is an institution with absolute legislative power, it is in itself contradictory to grant the Constitutional Court the authority to adjudicate unconstitutional laws. Classically speaking, wasn’t it the ‘decision’ of the ‘constitutional amendment power’ that the current Constitution gave the Constitutional Court the authority to adjudicate unconstitutional statutes? However, what I want to suggest carefully is to subdivide the ‘perpetrator standard’ according to the nature of each penalty rule or mandatory rule in the judgment of the principle of clarity. For example, 1. As in the majority of the provisions of the Criminal Code or many laws, the law stipulated in the form of ‘someone ~’ or ‘anyone ~ one’ requires at least the perspective of ‘an ordinary person with sound common sense and legal feelings’ to be implemented. This is because the level of clarity that all citizens and even foreigners in the Republic of Korea must follow must be the highest. 2. In certain laws, certain duties are imposed by limiting the scope of perpetrators according to the legislative purpose such as ‘business owner’, ‘business operator’, etc., such as conducting business in the form of reporting and registration (general permission), and punishment in case of violation If it is, there must be procedures and triggers for notifying, notifying, and issuing the obligations to be observed by the offenders, and in the case where such procedures are not provided, the evaluation should be based on the standard of the general public, and whether the law is applied by mistake should be considered. However, for this type of offender, the standard of judgment can be relaxed to the level that is expected to be held by workers in the same or similar industry, not the standard of the general public. 3. For business that falls under a lecture license or patent (general prohibition/exceptionally permitted), it can be premised that the offender is aware of the obligations imposed on him or her in the process of obtaining the license or patent. This is because they are expected to pay attention to the understanding, enactment, and revision of relevant laws and comply with them. Of course, if there are frequent revisions, they can claim mistakes in the law. 4. Even if the perpetrator is a state, local government, public official, etc., it can be premised that he or she has understood the existence of the legal obligation. However, what is at issue is the so-called ‘public official agenda’ regulation or similar regulations, where obligations that would not be imposed in the case of the original status and penalties in case of violation are stipulated, the specific duties and their It should be specifically notified that penalties will be imposed in case of violation. If there is no such process in the applicable laws and specific procedures, it will have to be judged based on the standard of the general public or similar industry.