刑事特別法으로부터 刑法의 復權

Abstract

A velocity of societal changes is much diversified and of unprecedented and new types of criminals on the other hand bring a disorder in the democratic constitutional system by infringing upon freedom and property rights of individuals. Dealing with social change and new typed criminals is natural duty of lawmakers. In this age in which various special laws are being legislated and being taken into action. The general law of criminal substantive law is the criminal law while the criminal special law is nothing but an exception to the general law. Korea has a great number of so-called Special Criminal Acts in addition to the Criminal Code. But special criminal acts has a many problem in criminal jurisprudence. The Special Acts are legislated only considering the convenience of application and overlapped with the provisions of the Criminal Act and imposed a severely heavy punishment, Overpenalization. This increase of the Special Criminal Acts is consequent on the confusion of application, decrease of norm power of the Criminal Law Act. The conclusion of this article is that inflicting aggravated punishment is not suitable from the viewpoint of Schuldprizip. and that it is desirable that unnecessary Special Criminal Acts weave Criminal Law together or simply abolishing. Unlike the other laws, strict principals of the constitution and the criminal law should be applied to the national punishment rights, because it deprives an individual of the life and freedom. It is proper for the legislative department to base its lawmaking on constitutional values and basic principles of the criminal law, because criminal legislation is the first step of the criminal law and the ripple effect is of huge importance once it is established. The legislative department should continue to contain itself within the boundaries of principals of the constitution and the criminal law, and should self-monitor whether it is following the principles or not. Its expansion into the special crime law and the administrational crime law brings more doubts about whether it is possible to realize the real constitutionalism. The most fundamental reason for this phenomenon is because criminal lawmakers approach general people’s demand for safety from a crime from perspectives of political views when the lawmaking and politics must be separated. This can destroy the immune system of punishments and neutralize the function of the criminal law as final means of social protection by causing generalization of the criminal law and the habitual intervention. In standard, each rules might be in harmony in order to conflicts can be resolved autonomically. And Crimial law should locate itself the smallest and the last part. Since the earlier Criminal law, the smaller people's freedom become. Especially, if the heavy punishment centered criminal law were to only focus on isolating criminals from the society indefinitely without any effectiveness, it cannot be considered as the true criminal policy. As for the problems of the criminal law, issues risen from the tendency of an excessive imposition of the heavy punishment, the symbolic criminal law that involves the politics, the criminal legislation examine procedures in each assemblies, and the support organizations of the criminal lawmaking were discussed. From this perspective, th special criminal laws should be abolished. if abolishment is too much in reality, it must be proved that there are enough grounds of such necessity to justifry the existence. It must be thoroughly and carefully proved that, when a certain provision of criminal special law is absorbed into criminal law, the organic law, resulting from the abolishment of the criminal special law, it is necessary and justified and not inconsistent with the spirit of the constitution and the idea of supplement which is a fundamental principle of criminal law.