행정형벌의 입법재량성과 그 한계에 대한 고찰

Abstract

Administrative penalty is the use of criminall punishment such as a imprisonment or fine to realize administrative purposes. These administrative punishments have the modality of administrative punishments for violating administrative orders or obligations of administrative agencies. This is expanding further from belief that criminal penalties are most efficient to realize administraive purposes. In the expansion of administrative penalty, there is an critical analysis of abuse of criminal punishment on administrative law. On the other hand, there is a favorable position that the expansion of administrative penalty is a natural phenomenon. In this regard, the Constitutional Court of Justice held that it is essentially the decision of the legislator whether to choose administrative order punishment or criminal punishment separately. In this paper, I have researched the characteristics of administrative punishment and examined the discretion of the legislature mentioned by the Constitutional Court. Administrative punishment has the modality that are characterized to promote efficiency and convenience in administration. Therefore, Illegality of punishable act is characterized by harming the efficiency and convenience necessary for administration rather than the moral code of conduct that should be inherent in the criminal law. Even if there is the legislative discretion to determine whether sanctions for violations of administrative duties, it has the limit of discretion. By pointing out the limitations of this discretion, I suggest using the limitations of a direction to prevent the indiscriminate expansion of administrative penalties. In addition, when these limitations are applied to actual administrative punishment, acts that are not criminally illegal or contrary to the principle of proportionality should be decriminalized.