[특집 : 주요 형사특별법의 정비방안] 폭력행위등처벌에관한법률의 정비방안

[CONFERENCE : Reform of Special Acts] How to Change the Law on Punishment of Violent Acts

In addition to the Criminal Code, Korea has a great number of so-called special criminal acts that amount to 2,000. Among them, the Law on Punishment of Violent Acts(LPVA) is one of the representative special criminal acts in respect of its long history(45 yrs.) and its wide application(16.2% of the total sum). Generally speaking, the special criminal acts may have their own virtue, for they can cope with the rapidly changing social milieu, considering their relatively easier legislation and revision. To avoid crticism, however, (1)they should be enacted through due process of law, (2)they should have appropriate contents, (3)and they should meet practical needs. As to the point (1), LPVA is neither legislated nor amended (till 3rd amendment) by the National Assembly. It was legislated by an emergency conference composed of 30 military men on service. Therefore, LPVA has a serious defect for the sake of formalities. As to the point (2), the main purpose of LPVA is aggravating the punishment compared to some provisions of the Criminal Code. Besides the criticism on the effectiveness of severe penalties, LPVA excessively reduces application of the Criminal Code, and causes confusion in searching and even applying the law. Moreover, special criminal acts like LPVA aggravates only a part of the Criminal Code, it disturbs the seriousness ranking between crimes. Some more critiques related to individual texts of LPVA are as follows; ⅰ) Inflicting aggravated punishment to habitual criminals is not suitable from the viewpoint of Schuldprinzip and practicality. ⅱ) Subdividing the penal regulations to the factual details is not appropriate. Because the penalty written in the Criminal Code already expects the factual details. ⅲ) Adding extra penalty on the basis of criminal record is no rational reaction against ex-convicts. ⅳ) Inflicting severe punishment to those who organized criminal party even before real criminal activities is a nonsense. As to the point (3), we witness in the statistical data that the texts of LPVA are overly estranged from the real practices of indictment and trial decision. The indictment rate, the conviction rate, and the period of penal servitude are all too lenient considering the severity of LPVA. There can be two ways in regulating the Criminal Code and LPVA. Weaving a few articles of LPVA in the Criminal Code; or simply abolishing the latter. Considering all things mentioned above, I recommend the second measure.