Modern state pursues enactment and application of the criminal substantive laws that limits the scope of intervention of punishment against socially deviating conducts by means of thoroughly complying with the principles of constitutional state. The p ...
Modern state pursues enactment and application of the criminal substantive laws that limits the scope of intervention of punishment against socially deviating conducts by means of thoroughly complying with the principles of constitutional state. The principles of constitutional state means the fundamentals of society which ensure that, for the purpose of preserving the human dignity, the guidelines of conduct to be abided by a citizen in his/her life are established in the form of law and the state authorities are formed and exercised on the basis thereof. From the criminal private law perspective, the principles of constitutional state may be construed to realize the dignity of citizen as those principles give rise to definiteness, predictability and legal safety with respect to the enforcement of criminal private law by way of appropriate control over the criminal law. If the state authority fails to suggest the requirements for preservation of the principles of constitutional state or, even if is suggests such requirements, the proper fulfillment of the requirements is impossible, it is nothing but uncontrolled self-indulgence, develops to uncontrolled exercise of punishment rights, and finally results in interference with fundamental rights of citizens, which must be avoided.
Taking a look at the statistical statement of laws and ordinances shown in the official website of the Ministry of Government Legislation, we may find that total number of the laws is 1,109 as of Feb. 17, 2006. Over 54% of these laws are related to criminal substantive law and criminal procedure law. This rush of criminal special laws means the area of a citizen's private act where s/he may be free from punishment is being encroached. To put it another way, based on the principle that punishment is to be the last resort, the dragnet in the name of criminal special law that is put out throughout the Korean society bring about the chance that entire people may be subject to threat of being criminal.
In order to prevent the overflow of criminal special law, it must be carried on first to decide whether what criminal special law deals with in a different manner from that of criminal law is consistent with the spirit of the constitution and the fundamental principles of criminal law and justified theoretically and systemically. From this point of view, I believe the work for improving criminal special law requires the following procedures and methods.
First, the improvement must be sought on the basis of criminal law so that the ground of any criminal substantive law shall be controlled and governed by criminal law. Second, in principle, any and all criminal special law shall be abolished; provided that, as to those criminal special laws that shall continue to exist inevitably, it must be proved that there are enough grounds of such necessity to justify the existence. Third, the improvement work for the criminal special law to be maintained shall be carried on in the manner that keeps systematic legitimacy and theoretical legitimacy as well. The systematic legitimacy is to assure that the criminal special law in question accords with the fundamental principles of the constitution and criminal law (legitimacy in hierarchy), the criminal special law does not have conflict of its own (legitimacy in the system), and there's no error when compared with other criminal special law (legitimacy out of the system). Lastly, it must be thoroughly and carefully proved that, when a certain provision of criminal special law is absorbed into criminal law, the organic law, resulting from the abolishment of the criminal special law, it is necessary and justified and not inconsistent with the spirit of the constitution and the idea of supplement which is a fundamental principle of criminal law.