형법의 훼손과 복원 -형사특별법 폐지의 관점에서-

Abstract

The Criminal Code, the basic law of crime and punishment, should be sustained power of rule. Now Korean Criminal Code is threatened by special criminal acts. They have provided many special criminal acts for preparing special crimes. As result the special criminal acts applicate many criminal cases on behalf of the Criminal Code. For this reason ruling power of the Criminal Code is getting deteriorated on. Many provisions of special criminal acts overlapped with the provisions of the Criminal Code. Consequently confusion of application, decrease of ruling power of the Criminal Code, inconvenience of reading acts and decrease of certainty have been made. The countermeasure of this problem is these. First most of special criminal acts should be abolished as soon as possible. Because most provisions of special criminal acts overlapped with those of the Criminal Code. We can regulate most of criminal cases with provisions of the Criminal Code. The overweighting punishment of the special criminal acts are useless in regulating criminal cases. Second we have to revise the Criminal Code often and often. As change of social circumstance aspects and results of criminal actings are still changed. So the Criminal Code have to adapt this changing social circumstances and crimes. The Committee of revising the Criminal Code must be organized and members of this Committee study society-changing and right contents of the Criminal Code. We revise the Criminal Code every 1-2 years at least. Third the trivial illegal acts should be eliminated as provisions of crimes. The criteria of criminalization is severe offensing of legal interests and necessity of punishment with criminal sanctions. So behaviors under this criteria of criminalization have to be regulated not by criminal sanctions but by ethics or administrative law. the Criminal Code is the last countermeasure of regulating illegal offenses. When the ruling power of the Criminal Code restored, simple and reasonable application of criminal law can be possible. The ideal application of criminal law is that the Criminal Code regulates most of crimes simply.