국가재정법상 형사법적 규율에 대한 법정책적 고찰

The government performs lots of activities in various fields such as defense, diplomacy, security, economy and welfare in order to achieve the public purpose. These government activities must be backed up by financial resources. In other words, a certain amount of income and expenditure is required. Unlike the private economy, the national finance mobilizes legally enforced funds and provides public goods with non-competition and non-intervention. Therefore, the national finance should not be done voluntarily by individuals or institutions that are responsible for it. The national finance should be based on laws and regulations. Among the various laws and regulations relating to national finance, the “National Finance Act” is called the Fundamental Law of State Finances. As in most administrative laws and regulations in Korea, the “National Finance Act” has penalties for achieving the administrative purpose pursuant to this Act. However, while other administrative laws have a fairly long list of penalties, there is only one penalty clause in the “National Finance Act”. It is Article 102 which is to punish public servants who engaged in unfairly interfered with fund asset management. This article can be regarded as a special legal provision for criminal offenses under the Penal Code. However, it is doubtful whether the effectiveness of the “National Finance Act” will be properly secured by the provision of punishment for unfair intervention by public officials on fund operations. There is no penalty clause in the “National Finance Act” for budget-related offenses. Every year, the National Assembly audits the budget execution of the government. As a result, many cases of budget execution violating the “National Finance Act” are pointed out. Among them, it is desirable to introduce punishment provisions for representative cases of illegal budget execution.