보안처분 중복부과의 제한원리: 비례성-보충성 원칙을 중심으로

Abstract

Multiple security-measures are imposed without any limiting statues or precedents. This study focuses on the limiting principle of proportionality and of subsidiarity to justify the overlapped imposition of security-measures. Both limiting principles of the subsidiarity and of proportionality are mutually complementary, so they can be a solution to the problem. At first, this article argues on the principle of subsidiarity. First, the principle of subsidiarity is a limiting principle to be applied in advance comparing to the principle of proportionality. More infringing security-measure(s) are prohibited to impose when less infringing one(s) can fulfill the purpose. Second, the principle of subsidiarity should be understood passively. They can be imposed only when punishment cannot fulfill the purpose. Third, the principle of subsidiarity can be applied not only to the relationship between punishment and security-measure but also to the relationship among security-measures. Next, this article argues on the principle of proportionality. First, the principle of proportionality is a limiting principle to be applied later compared to the principle of subsidiarity. Second, the principle of proportionality should be applied strictly that subdivision principles are tested individually and the test of justification of the purpose should be individually reviewed in the perspective of criminal law. Third, the principle of proportionality as criminally specialized one is applied both to punishment and to security-measure. The principle of proportionality is specified and named as the principle of responsibility.