환경형법에 있어서 ‘효율성’ 개념의 재구성

The reinforcement of penal clauses in environmental law has become universal trend within environmental legal policy under the condition of risk society. The tendency to protect social system rather than individual rights is neither unique nor unfamiliar within the current legal policy of acknowledging the so-called soziale Rechtsgut. Under criminal justice, which divides the object of protection into individual versus public legal interests, it is generally understood that the latter should play a limited, conditional, and supplementary role. Paradoxically, however, there has been an expansion of special criminal codes, oriented towards protecting environment itself in order to secure conditions of ‘living without anxiety about uncontrollable dangers.’ Another notable feature of environmental criminal law is its Vorfeldkriminalisierung, a concept that explains how criminal law intervenes in the earlier stages of an action, before its illegality becomes apparent, to prevent illegal results. In ordinary criminal procedure, the criminality of an act is decided upon either at the moment of infringement or when there is a clear and present danger of infringement. In contrast, the criminal procedures in these cases initiate upon mere speculations of infringement. Such features reveal the failure of securing legal efficiency in environmental criminal law, both in practical and symbolic terms. This paper starts with analyzing such tendency of reinforcing penal clauses in environmental criminal law in postmodern risk society. It then examines the features of current environmental criminal law that betrays the main principles of modern criminal justice, and criticizes the defects in efficiency of its enforcement. Finally it stresses the necessity of reconceptualizing the concept of efficiency in the sphere of environmental criminal law, suggesting both internal and external measures to insert the notion of legitimacy in the conceptualization of efficiency.