특정경제범죄법상 취업제한규정의 법적 성격에 관한 고찰

Article 14 of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (hereinafter referred to as the "Specific Economic Crimes Act") regulates employment restrictions for individuals who have been convicted of specific property crimes under Article 3 of the same Act. The legal implications arise when a person subject to these employment restrictions obtains new employment without the approval of the Minister of Justice. While it cannot be definitively asserted that the employment restrictions under the Specific Economic Crimes Act are unconstitutional, there is undeniably a potential for unconstitutionality. This is because such restrictions impose a form of double punishment on the individual or impose security measures without an assessment of the risk of recidivism. The Specific Economic Crimes Act does not include provisions to protect bona fide third parties in cases where the legal acts performed by a person violating employment restrictions are deemed invalid. Nonetheless, deeming all legal acts performed by an employment-restricted person during the violation period as invalid could harm legal stability and potentially result in unforeseen losses for transaction counterparts or bona fide third parties. Article 14(1) of the Specific Economic Crimes Act states that individuals convicted of certain crimes cannot be employed by certain enterprises unless approved by the Minister of Justice. This implies that employment acts are considered valid in terms of civil law, contingent upon the approval of the Minister of Justice. The validity of a legal act cannot fundamentally depend on the approval of the Minister if the act is initially considered null and void. Additionally, Article 14(2) stipulates that enterprises represented or directed by such individuals cannot obtain permits for licensed businesses without the Minister's approval. This also presupposes the validity of the employment act itself. Furthermore, even if a person with employment restrictions is employed, the Minister of Justice can only request dismissal (Article 14(3)), which supports the same interpretation. This clearly delineates the limitations of Article 14. It restricts employment and imposes disadvantages on the enterprise in case of violation but does not invalidate the employment act itself. Not invalidating the employment act aligns with general common sense and legal sentiment. Given the impact of employment restriction violations on the parties and third parties, the employment restriction provisions under the Specific Economic Crimes Act should be interpreted as regulatory provisions rather than provisions affecting the validity of the act.