특정범죄가중처벌 등에 관한 법률적용상의 몇 가지 문제점과 대안

Since its enactment over 40 years ago, “The Law on Aggravated Punishment of Specific Crimes” (“the Law”) has remained in the form of a special law, with its scope gradually increasing. However, there has not been a substantive review on whether the Law should be maintained in its current form. Through a careful review of whether aggravated punishment provided under the Law are in accordance with protection of legal interests provided under the criminal law and appropriately reflect the degree of criminal liability, it is necessary to reexamine and question the legitimacy of the Law. First, this article examines provisions of the Law that are applied rarely in practice. With respect to Article 4, Paragraph 3 of the Law, it needs to be examined whether a disclosure of confidential information by a government employee of the National Assembly’s Information Committee in the course of official business must be subject to aggravated punishment compared to illegal disclosure of alleged facts under the criminal law or disclosure of confidential information by a private citizen. Further, it needs to be questioned why only such particular group of government employees are subject to this provision of the Law, while all other government employees are subject to the regulations concerning disclosure of confidential information under the criminal law. That is, even if there is a need for aggravated punishment in such a case, one needs to question why such case would deserve maximum sentence that is twice the amount of maximum sentence applied to other government employees who illegally disclose confidential information in the course of his or her official business, as the Law current mandates. The fact that over the past 5 years, there has rarely been a judgment issued based on this provision, also suggests that a review concerning the fundamental need for the above provision is desirable. Similarly, with respect to Article 5, Paragraph 8, there has rarely been a court judgment applying this provision over the past 5 years, and a question arises as to why the Law specifically targets only organizations committing larceny. Under the Law, an organizer of a group that is formed for the purpose of committing repeated larceny or that may be expected to commit repeated larceny may be sentenced to over 10 years of imprisonment. Moreover, simply forming such a group may punish the organizer, even if no crime has been actually committed. Such provision need to be re-examined to see whether such aggravated punishment is appropriate in light of today’s sentencing structure. Article 12, imposes aggravated punishment to those who aid foreigners to violate domestic laws, such as laws restricting foreigner’s acquisition of domestic assets or property(“Foreigner Land Act”, etc.). However, even without such provision specifically designed to punish conspirators and abettors, punishment can be rendered to conspirators and abettors under the general criminal law, and pursuant to “Real-estate Registration Act of the Rightful Name”, enacted in 1995, a domestic citizen who acquires real estate for foreigners in his or her own name as a conduit can be criminally punished. Moreover, it is questionable whether a domestic person who aids foreigner’s illegal acquisition of domestic property should be subject to more aggravated punishment than the foreign acquirer, and it needs to be examined whether it is justifiable to base the minimum sentencing amount to the value of the acquired assets. It would be more sensible to include such provision for punishment of domestic abettors in the relevant law itself along with provision for punishment of foreign principals. Next, the article examines the provision of the Law relating to bribery, which has been subject to many amendments. Article 2 stipulates that the amount of the minimum sentence shall be established based on the amount of bribe, regardless of the nature of the criminal conduct. This directly contradicts the sentencing standard under the criminal law, which considers “the nature of criminal conduct” as the primary factor in determining sentences. This has resulted in the regulations regarding bribery established under the criminal law applying only to cases involving small amount of bribe (below KRW 30 million under the current law), which are not covered by Article 2 of the Law. When a special law establishes higher minimum sentences for certain specific crimes that are already regulated by the basic criminal law by adopting a sentencing standard that is fundamentally different from the standard used in the basic law, and the types of crimes that would be subject to similar punishment under the basic criminal law are not comparable to the crimes regulated by the special law, then it can be said that the practice of establishing minimum sentences is not serving its proper function in formulating appropriate sentences. Article 3 given that Article 111 of “the Attorneys-at-Law Act <http:// engdic.empas.com/dicsearch/show.tsp/@1380>” addresses the same issue with wider scope is no longer necessary to maintain this provision separately. Article 4 allows the scope of subjects criminally punishable under the Law to be adjusted based on amendments made by presidential decrees, which raises the concern of violating the principles of clearness of law and the rule of law. Further, subjecting non-government officials, who are unable to receive any benefit related to holding of public office, to the same punishment as that applied to government officials, may be viewed as violating the principle of fairness. Lastly, the article examines provisions relating to aggravated punishment for habitual crimes and repeated crimes. Under the criminal law, in order for a crime to be classified as a “habitual” crime, the element of “habituality” must be first established. However, the standard for such determination is not as consistent as that applied to repeated crimes. It is also important to note that the criminal law already considers habituality as an aggravating factor, and requires repeated crimes to be subject to aggravated punishment. Despite the existence of such provisions, the Law stipulates that certain habitual or repeated crimes are subject to further aggravated punishment, without providing the underlying basis and justification for the imposition of additional aggravated punishment. Nor does it reasonably explain how the provision regarding aggravated punishment for certain habitual crimes under the criminal law should be interpreted in conjunction with the Law. Article 5, Paragraph 2, Clause 4 and 5 and Article 2, Paragraph 4, Clause 1, 3, 4, and 6 are examples of such a case. Special laws that set forth-requisite elements of crime for special types of criminal conduct that are not contemplated by the criminal law may be justifiable. However, a special law that not only imposes aggravated punishment for crimes that are already subject to aggravated punishment under the existing mechanism of the criminal law, but that which stipulates further special aggravated punishment for habitual or repeated crimes undermines the sentencing standard and conflicts with the exercise of criminal justice, and only brings about inflationary effect in sentencing. Therefore, the provisions imposing aggravated punishment for habitual and repeated crimes in the above Law need to be abolished. In conclusion, in the event that the draft proposals for reform of the sentencing policies currently being reviewed by the legislature are adopted and implemented, advisory sentencing standard is likely to be established gradually for each type of crime. However, such establishment of sentencing standard cannot come about unless the existing special laws and the substantive criminal law are carefully scrutinized. Such scrutiny should be geared toward correcting deficiencies in the current system that undermine the effectiveness of the basic criminal law.