행정형법의 실체법적 문제점에 관한 소고

Abstract

The overuse and abuse of criminal law in what is called the Risk Society is an unfortunate trend. Over the past 40 years, administrative criminal law has expanded significantly in size and scope, encompassing the prosecution and judgment of violations of administrative law such as financial market law, tax law, building law, fair trade law, and environmental law. It is estimated that nearly 1,000 statutes contain criminal penalties, with approximately 12,500 criminal code provisions in those statutes. A more significant problem is that many of these regulations, motivated by the aim of controlling risk rather than enhancing social justice, are often too vague or obscure. This makes it challenging to punish individuals who violate criminal offences without criminal intent or even knowledge that these offenses exist.
 The Serious Accidents Punishment Act is a typical example of administrative criminal law containing numerous ambiguities, likely leading to considerable confusion during enforcement. This confusion results in many gray areas, sparking widespread debate throughout the business community. The new law, implemented on January 27, 2022, aims to penalize the owners and management of companies with 50 or more workers for failing to fulfill their duties to prevent serious accidents.
 This article examines the characteristics of administrative criminal laws and analyzes the problems associated with them, such as challenging the principle of clarity and the culpability principle required under the penal code. Moreover, it suggests that Congress should amend or repeal redundant or superfluous administrative criminal laws to avoid overcriminalization and excessive punishment. This would eliminate vague, overly broad criminal offenses, preventing arbitrary application of criminal statutes. Regarding the Serious Accidents Punishment Act, urgent action is needed to abolish or at least amend the law to clarify the obligations and offences for preventing practical serious accidents.