拘留와 科料의 刑罰適格性

Abstract

The Korean Penal Law has widely used the Penal Detention and Minor Fine as Penal Sanction for the Minor Crime(Misdemeanor). However, actually, there are almost no cases of sentencing the Penal Detention and Minor Fine on the Criminal trial. Even though these punishments are just practiced in the Prompt Summary Trial, its impotance is very high in the whole Penal Cases. Considering Penal Detention’s and Minor Fine’s importance in the practical affairs of Penal Law, it is true that there is rarely research on the Penal Detention and Minor Fine. Until now, the study of Penal Detention and Minor fine have been limited to finding problems of the Summary Trial or discussing on abolishing Penal Detention and Minor Fine in relation with the unification of the Detention or the entry of the system of Day Fine. However, the abolishment of Penal Detention and Minor Fine means the radical revolution of Penal Sanction beyond minimizing the kinds of criminal punishment. It is because we have to consider the possibility of the entry of substitute punishment or the decriminalization of minor illegal practice. If we do not explore the substituting means for the Minor Crime, the practice of Minor Fine and the short detention cannot help being continued despite its change of title. In this research, after discussing on which position the Penal Detention and Minor Fine take in the whole Korean system of Penal Detention, I suggested the substituting means and confirmed the value of existence of the Penal Detention and Minor Fine and its validity.