누범가중에 관한 입법론을 위한 새로운 해석론

Abstract

Article 35 of the Criminal Law is a provision concerning repeated crime. Aggravation of repeated crime is to punish those who neglect the warning function of punishment by asking for responsibility for their actions. The Criminal Law stipulated the provision of repeated crime to prevent the phenomenon of repeated Crime. However, the principle of equality, the principle of prohibition against double jeopardy, the principle of prohibition of excessive punishment and the principle of liability can also be violated under the Constitution because repeated crime is disadvantageous discrimination against ex-convicts. Thus, the majority of opinions assert the abolition of the provision of aggravation of repeated crime. However, I think it is not desirable to abolish the provision of aggravation of repeated crime without special alternatives. According to the interpretation theory, the provision of aggravation of repeated crime is not contrary to the principle of equality and the principle of prohibition against double jeopardy. Above all, the provision of aggravation of repeated crime can be reduced in law and in judicial review in criminal practice. Therefore, the aggravation of repeated crime can be harmonious enough with the principle of liability, and it can not be said to violate the principle of prohibition of excessive punishment. In particular, from the viewpoint of crime prevention, the provision of aggravation of repeated crime has the legal value to be worthy because it has the symbolism of punishment. Therefore, the problem of aggravation of repeated crime is not a legislative issue. In other words, it is a problem of legal interpretation, and it should be regarded as a problem of legal use. In conclusion, as suggested by the authors, it is possible to solve the provision of aggravation of repeated crime by legislation, adopting one-and-a-half time of the maximum penalty rather than double. Therefore, in the criminal practice, it seems to be desirable to apply the restriction interpretation which reduces the scope of aggravation of repeated crime in order to harmonize aggravation of repeated crime and the principle of liability.