특별법상 ‘범죄의 가액’에 따른 차등처벌에 대한 비판적 검토

Criminal law covers crimes and punishment. Crime here corresponds to a component as a legal requirement, and refers to an action which is illegal and whose responsibility is acknowledged. When such a legal requirement is met in whole or in part, a certain legal effect is imposed. The legal effect imposed on each criminal type as regulated in the Criminal law is proportional to the degree of an offense. However, special laws, including ‘Act on the Aggravated Punishment, etc. of Specific Crimes’, ‘Act on the Aggravated Punishment, etc. of Specific Economic Crimes’, ‘Act on Special Measures for the Control of Public Health Crimes’, and ‘Financial Investment Services and Capital Markets Act’, regulate that even the same kind of crime should be punished differently depending on the equivalent value of a crime. The equivalent value of a crime is an important element for the determination of a violation of laws. However, differentiated punishment according to the equivalent value as specified in the special laws has a variety of problems. The standards of the equivalent value of a crime defined in the special laws are vague, and no clear ones have been suggested so far. Moreover, it seems also difficult to establish specific standards in the future, and the possibility seems unlikely. In the Criminal law, a social deviant behavior related to infringement of legal interests is expressed as a certain component, and therefore, in case of illegality and responsibility, a legal effect is generated. When criminal sanction is imposed as a legal effect, there are different principles that should be followed strictly, such as the proportionality between punishment and responsibility, the clarity principle of legal components, the principle of balanced punishment, and the principle of legality. When there is a direct conflict among these principles, it will be difficult to secure the legal effectiveness, and it will degenerate into a symbolic legislation.