형사제재의 행정법적 제재로의 전환

Abstract

If you look at the numerous laws in our country now, it is easy to see regulations that raise doubts about whether they are excessive criminal sanctions. In other words, most of the individual laws other than the Criminal Act or the Special Criminal Act were enacted to achieve the administrative purpose stipulated in the Act, and legal sanctions are adopted to ensure the fulfillment of that purpose. However, it is not difficult to find cases where criminal sanctions (mainly in the form of criminal fines) rather than administrative law sanctions are adopted in relation to the means of sanctions. Under this awareness of the problem, the government recently launched a task force (TF) to improve economic punishment regulations to change the provisions of criminal punishment into administrative sanctions such as fines. It is necessary to examine in general whether there are objects that need to be converted into administrative law sanctions among the provisions of criminal penalties that are being set. In selecting the criminal punishment to be converted in the process of converting the existing criminal punishment into an administrative sanctions, the legality of the purpose of criminal punishment, the appropriateness of the means of sanctions, the minimization of infringements due to sanctions, and the balance between public and private interests opposing performance (comparative sentence) It is necessary to check whether it conforms to the principle of proportionality in consideration of such factors. In other words, it is necessary to carefully consider whether a new type of sanction rather than a fine or the existing administrative law sanction method or whether it is necessary to mobilize several sanction methods together is necessary. In addition, it is necessary to review whether the change in these legal sanctions is to avoid the harshness of the existing criminal punishment regulations. In other words, individual laws often prescribe rather than a means to achieve a set end. Even if it is inevitable to eliminate social risks through criminal punishment, it is also necessary to examine whether conversion to administrative law sanctions is being attempted in consideration of the practical difficulties of avoiding the characteristics of the strict criminal law. Each ministry should review whether the provisions of criminal punishment scattered in each law are effective sanctions against the rule of law, whether they should be converted into administrative law sanctions, and which administrative law sanctions conform to the rule of law.