과잉범죄화의 극복을 위한 비범죄화에 관한 연구 - 다각적인 접근방안의 모색 -

A growing list of the administrative regulations have been accompanied by criminal punishment to warrant their compliance in Korea for the past several decades. However, such numerous penal clauses have been a critical cause of overcriminalization which is, from the perspective of economics, defined as a phenomenon in which the marginal social cost of an additional penal clause exceeds the marginal benefit. The harmful consequences of overcriminaliation are at least three-fold. The first is production of too many ex-convicts weakening the intended desirable functions of criminal punishment. The second is distortion in the incentives of law enforcers usually associated with their discretion. The third is inefficiency in allocating scarce law-enforcement resources. The bottom-line is that all these ultimately undermine crime deterrence to a significant extent, and the extant literature has proven this proposition. The purpose of this article is, based the aforementioned worrisome observations and theories, to probe on effective ways to contain the strong tendency of overcriminalization and to recover from this undesirable impasse. Specifically, the paper offers two-dimensional approaches: the legislative decriminalization and the judicial decriminalization. While the former focuses on the systematic and comprehensive reorganization of criminal provisions, the latter emphasizes the judicial role to screen out legal clauses that have a high risk of excessive criminal punishment. Given that it takes tremendously long time to revise or repeal any laws already legislated, the importance of the judicial decriminalization is apparent from the policy point of view. As such, a yet stronger will toward decriminalization should be essential and required on the part of courts and the Constitutional Court of Korea as well.