미납벌금의 대체형으로서 사회봉사명령의 도입 문제 -‘벌금미납자의 사회봉사명령집행에 관한 특례법안’에 대한 검토를 중심으로-

Abstract

Under the present law, a penalty defaulter works at a prison workshop within a given period. However, as the imprisonment for the punishment of failure to pay the penalty lead to unusual results of restoring imprisonment on the fine default just from the fine penalty that intended to avoid a short-term bad effect, people without economic strength end up with sentencing imprisonment on the fine default, and the defaulter rather favor a suspended sentence on imprisonment. Recently, after accepting criticism on regarding imprisonment on the fine default as the restoring execution, government submitted an exemption law to the National Assembly in order to introduce community service instead of imprisonment for the defaulter on economic grounds. The exemption law includes a procedure that a public prosecutor approves the community service applied by a penalty defaulter to execute a sentence to perform community service in advance of imprisonment. However, the exemption law asking approval of a public prosecutor is quite different comparing with previous suggestion intended to introduce community service order system as an alternative execution instead of imprisonment on the fine default. Nevertheless, a strong insistence on whether a public prosecutor or a court of justice approves it confronts each other. As mentioned above, the main point of theoretical and practical confrontation exists in whether community service is an alternative execution of fine penalty or a new restoring execution on the fine default. Considering foreign legislative examples and hands-on-background, several prior legislative managements that are not mentioned in the exemption law are prerequisite at least in understanding all of the exemption law procedures as implied in the exemption law. Even if that a public prosecutor admits and executes community service by a penalty defaulter according to the rules of the exemption law without prior legislative managements may be of advantage to the people without economic strength, changing a judicial decision without a court of justice being involved in the case will be unjust. Furthermore, rather than just introducing the community service order system as a restoring execution of imprisonment on the fine default, it needs to make decision on whether the exemption law is to be induced or not after taking everything into consideration, such as daily fines system, monthly installment of fines system, and suspended sentence system for fine penalty, which have been discussed as improvement plans. Currently, the Ministry of Justice proceeds to revise laws to improve the whole punishment system. Like the exemption law, rather than preparing for a special case for punishment law as an alternative mean of imprisonment, it will be an adequate scheme to make the purpose of legislation for the exemption law to be prescribed in penal code by investigating and connecting the legislative project to legal exchange work of the Ministry of Justice.