형법 및 형사특별법상 '징역과 벌금의 병과'에 관한 연구

A Study of the Concurrent Sentence of Imprisonment and Fine in Criminal Law and the Special Criminal Law

The punishment has been continuously strengthened in Korea, ever since enacting the code of Korean Criminal Law in 1953. One of them is the concurrent sentence of imprisonment and fine. There are two arts of the concurrent sentence of imprisonment and the fine. It is the necessary concurrent sentence of them and the arbitrary concurrent sentence of them. In the necessary concurrent sentence, the fine is positively imposed to imprisonment concurrently, in the arbitrary concurrent sentence of them, the fine is concurrently to imprisonment imposed by the discretion of judge. Until now, the constitutional petition has been several times filed. But the Korean Constitutional Court ruled that the code of the concurrent sentence of them is constitutional. The constitution petition are whether the code of concurrent sentence of them is against discretionary power of weighting of an offense of judge, equalitarian principle, the principle of prohibiting an excessive punishment, the punishment of prohibiting double punishment. The argument of the constitutional court that the code of concurrent sentence of them is not against the constitution is not persuasive as the argument. It is belong to the decision of a lawmaker, to make the code of concurrent sentence of them, in oder to forfeit the profit earing from the crime. This is based on law positivismus, so all laws are justified by the law positivismus. Others are not persuasive as a argument in like manner. Specially, the claimant of the constitutional petition argued that the code of concurrent sentence of them is against the principle of prohibiting double punishment. Its argument is that the term of imprisonment are postponed, if the fine concurrently sentenced to imprisonment is not payed. In relation with this, the constitutional court is said that the detention in a labor house as a result of not paying the fine is not sentencing punishment again, but only the change of punishment execution methode. This argument is reasonable. All the more, this argument is persuasive. It is prescribed as the art of punishment in the Korean Criminal Code §41: capital punishment, imprisonment, imprisonment without forced labor, disqualification, suspension of qualification, fine, detention, small fine, forfeit. Only disqualification, suspension of qualification, forfeit, concurrent imposition by the punishment of concurrent crimes can be concurrently imposed to the other punishment. There is not the code of imposing the imprisonment and fine concurrently anywhere in Korean Criminal Law. If this argument is used, maybe the Korean Constitutional Court had said that the code of concurrent sentence of them is against constitution.