형가중적 특별법에 관한 헌법재판소 결정문 분석

Abstract

Korea has a great number of so-called Special criminal acts in addition to the Criminal Code. They are almost products which were enacted as social needs arose from time to time, but their mass production has a bad influence which damages unity and coherence of criminal law system seriously. Hard criminal code has led to the production of special criminal code. The special criminal code is legislated only focusing on the convenience of application. special criminal, however, usually provide harsher punishments than the criminal code, and the degree of the criminal penalties is excessively relentless compared with that of the criminals. Aggravation factors of the special criminal are out of balance and vague. In determining the type and the degree of the statutory sentence for a crime, the request for the respect and the protection for human dignity and values against the threat of criminal punishment under Article 10 of the Constitution should be observed, the statutory sentence should be determined within the range enabling the application of the principle of different punishment for different crimes pursuant to the spirit of prohibition of excessive legislation of Section 2 of Article 37 of the Constitution for the substantive realization of the principle of the government by the rule of law, and the appropriate proportion should be maintained so that the criminal punishment corresponds to the nature of the crime and the responsibility therefor. The balance between crime and punishment should be consistent with the value system of the time that is based upon the constitutional order. Therefore, a fresh review over the statutory sentence in the basic law of the Criminal Act is required as a matter of principle when the amount of sentence for a specific crime is no longer appropriate due to changes in social circumstances, while, however, the amount of criminal punishment should not exceed the degree of responsibility of the actor also when the sentence is aggravated for special reasons. Ultimately, the Provision contradicts the principle of responsibility that requires proportionality between liability and punishment as well as the principle of equality for disruption of balance in the punishment system, which is ultimately against the Constitution.