형사특별법을 통한 형사법의 확장: 도로교통범죄를 중심으로

The purpose of this study is to analyze and criticize the trends of criminalization of the road traffic offenses. The Tendency of criminalization is pronounced in the field of road traffic. Especially Article 5.3 and 5.11. of “Act on the Aggravated Punishment, etc. of Specific Crimes” present problems of overpenalization. Retaliatory aggressive driving, which was previously prosecuted in accordance with Road Traffic Law, is punished by Criminal Code or Special Criminal Law in recent years. The penalty for DUI conviction is applied to more types of vehicles. In addition, minor offenses, for which a fine for negligence in Road-Traffic Act can be paid, is on principle sentenced to short term imprisonment or to a monetary penalty. “Act on Special Cases concerning the Settlement of Traffic Accidents” shows also enlarged exception of punishment. The punishment should fit the crime. In order to determine the appropriateness of the severe penalties, the proportionality principle should be used. Contrary to the common belief, several studies show that the de-criminalization of minor offences can helpful in achieving preventive effects. As a consequence, excessive expanded sanctions and ungrounded criminalization should be avoided. Lastly, the noticed disposition procedure and the exceptions of punishment in traffic accident can be so criticized that it is a complicated, distorted process, while these show the tendency of limiting punishment. The aspect of this study is that the rule of law must be upheld in the field of criminal law. It is the principle of proportionality, which provide a measure of appropriate penalties.