가난의 범죄화 - 국민기초생활보장급여 부정수급에 대한 형사처벌 문제를 중심으로 -

The criminal punishment for fraudulent receipt of the National Basic Living Security Act(NBLSA) benefits is a representative example of linking poverty with criminality. Though many cases of welfare fraud show the need for state protection for individuals who lack “ability to live,” whether due to poverty itself or an inability to navigate complex administrative procedures, categorizing these actions as crimes and imposing criminal penalties against the benefit recipient may not effectively prevent welfare fraud. Rather, it risks intensifying unjust stigmas against beneficiaries, fails to meet the appropriateness required by substantive legality, and shifts the responsibility for the state’s failure to protect its citizens to the citizens themselves. This approach can result in double punishment and ultimately hinder the NBLSA program from operating according to its original purpose. Therefore, I propose revising Article 49, Item 1 of the NBLSA to remove criminal penalties against beneficiaries. This provision currently includes “those who make others to receive benefits,” so a complete repeal of it could imply a lack of necessity to penalize organized fraud involving third-party brokers. Thus, I suggest a partial revision that removes only the criminal penalty against the beneficiaries themselves. Even if revised as above, in cases where fraudulent receipt undermines the essence of the National Basic Living Security Benefit System to the extent that criminal punishment against the recipient is necessary, the crime of fraud under the Criminal Act can be applied. Therefore, there will be no gap in the state’s criminal intervention when required.