과잉범죄화에 대한 소고 : [부정청탁 및 금품 등 수수의 금지에 관한 법률]을 대상으로

Overcriminalization is a chronic evil tendency in criminal justice. It is not just our country’s own problem. A great many materials have consistently pointed out its harmful effects, but to legislators, it was like preaching to deaf ears. As a form of overlegislation, overcriminalization is deeply connected with double legislation, symbol legislation, rough legislation and the like. Overcriminalization is the product of ‘the efficiency-oriented criminal policy’ which claims that powerful sanctions are effective. In a way of solving social problems, legal populism prefers legislation to devoted interpretation and execution of the existing norms because the symbol of working politicians is maximized just by dealing with social problems in a roar(=symbol legislation). The Improper Solicitation and Graft Act, I think, was made on a background of such inclination. There occurred acute disputes from the point of the legislation pre-announcement, and controversies do not cease even now when it is being enforced. Nevertheless of decision on constitutionality of a constitutional appeal which had been brought up before the enforcement, appreciations on the decision are in disagreement. I studied the Improper Solicitation and Graft Act with a thought that it is indeed another overlegislation and overcriminalization. The reason for this is that its legislation process was proceeded without analysis of legislation necessity that is required from the legislation theory and ordinances, and that the Act has created criminal penalty regulations(e.g. crime of Acceptance of Financial or other Advantages) that is against criminal law principle. Above all, legislators should have weighed first that whether preexisting anti-corruption ordinances were executed sincerely, to confirm legislation necessity. But Anti-Corruption & Civil Rights Commission or the government has not provided any valuable material regarding to this. They did make a hasty conclusion that imperfection of preexisting anti-corruption ordinances was to blame for the public officials’ corruption. Thereby, preexisting ordinances were instantly treated as incompetent and powerless ones. Without rational analysis of the cause of the corruption, the government did push forward to legislate this Act. For all various reasons of crime outbreak, how could they have ascribed our society’s public officials’ corruption to the flaw of the ordinances, without research and discussion of criminal policy? Because of the unclear necessity, it cannot help but suffer disgrace of overlegislation and double legislation. And particularly, the crime of Acceptance of Financial or other Advantages of the Act will remain as the case regarding the criminal law as prima ratio, not as ultima ratio. By such reasons alone, this Act must have been inflicted with big damage in its legitimacy. However, a decisive problem is something else. That is poor bill consideration. In the National Assembly archives, one can find out that there was no little periods of time from pre-announcement of the legislation to the Assembly plenary session where the bill was passed. I think that the reason for such drift of bill examination originates in planners’ or legislators’ absence of interest in legislation necessity. Though such indifference is due to imperfect bill submitted by the Commission or the government, what needs to be criticized is that legislators did not follow the legislative procedure sincerely. When one examines the legislative process of the Improper Solicitation and Graft Act, he can easily recognize that legislators’ legal populism has become their serious inertia. They are missing even legal common sense that the law is just one of several norms that keep society’s order. As the law gets obese, it will lead to contraction of non-legal social norms all the more, withering individual autonomic area. With the birth of this Act, we, self-regulating beings, suddenly became law-directed beings. Whether we have given such authority to legislators, I do not recall. Lawmaking is just a start of the constitutional state. They must devote themselves to interpretation and execution much more. When applied, the norms get alive. With its repeated accumulation, power of execution strengthens like pure gold. Only then can it be said that we have taken one step forward to establishing the constitutional state. Legislation is not what formally fills up quorum for decisions but ‘what builds the law’.