죄형법정주의를 통해 본 「부정청탁 및 금품 등 수수의 금지에 관한 법률」의 쟁점에 대한 고찰

In relation to “nulla poena sine lege” which are the constitutional request and the principle of criminal law, “Law about prohibition of corrupt requests and receptions of money and goods(an abbreviated name; Prohibition Law about Corrupt Requests)” has the following problems. First, in relation to the scope of the subject of the law, it is a serious violation of individual freedom and rights because the state intervenes too much in the private domain in violation of the basic principles and systematic consistency of the criminal law to expand the scope of the subject to the private sector such as private school staff and journalists. Second, the law determines whether to punish criminal punishment based on a certain amount of money (100,000 won) regardless of job relatedness or price, and a certain amount of money can not be a factor to determine the actual reality of illegality. Therefore, it is necessary to revise the direction to determine whether to punish criminal punishment based on job relatedness, not the amount of the amount of the receipt. Third, the law stipulates that “the money in the range of the amount set by the Presidential Decree as food, congratulatory expenses, gifts, etc. provided for smooth job performance, sociality, ritual or assistance purposes” is not punished, which is a comprehensive delegation beyond the limits of the delegation legislation, which is against the legalism of the grammar. Fourth, the law provides for the criminal penalties in the same way that officials, etc., directly receive money or money when they violate the spouse's obligation to report or receive money or money. This not only violates system coherence, but also violates the general principle of law (responsibility), which states that law cannot enforce actions that do not have the expectation of legal action. Therefore, it is reasonable to amend to penalty rather than criminal punishment.