형사특별법의 입법구조와 이론적 기초

Abstract

The reality of the criminal legislation can be summarized as the following:Hard criminal code has led to the production of special criminal code. The special criminal code is legislated only focusing on the convenience of application. special criminal, however, usually provide harsher punishments than the criminal code, and the degree of the criminal penalties is excessively relentless compared with that of the criminals. Aggravation factors of the special criminal are out of balance and vague. Many provisions of the special criminal code overlapped with those of the criminal code and they finally caused confusion of application, decrease of norm power of the criminal code, inconvenience of reading acts and decrease of certainty. Special criminal about aggravated punishments especially came from a concept: the strongest punishment is the most efficient way to prevent crimes. It, however, brought serious side effects to criminal practices (or affairs) by abusing strong punishments unnecessarily. Even though we create special criminal repetitively to deal with newly emerging crimes, we cannot prevent all of the crimes perfectly. To keep out from those side effects, special criminal which are too strong - and are occasionally replating the existing criminal code - should be included in the existing criminal code by certain standards and procedures. From this perspective, first up, it should be sincerely considered whether a new special code legislation is really necessary, reasonable and it can rightly function or not. Secondly (and in particular), newly emerging crimes should be controled not by newly legislated special criminal code but by the existing criminal code with amendment. In conclusion, these tries and efforts only can prevent the criminal code from withering its own power, eliminate the chaotic criminal code system and ultimately guarantee its effectiveness.