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KCI등재 학술저널

형사법상 ‘특별법 우선 법리와 그 예외’에 관한 판례와 학설의 이론적 정합성

기소재량의 한계에 관한 논의를 포함하여

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In this paper are systematically reviewed, nature of special law, ‘lex specialis derogat legi generali’-principle(lex specialis-principle), exception to lex specialis-principle and opportunity principle as legal ground allowed exception to lex specialis-principle and prosecutor’s prosecutorial discretion derived from opportunity principle. So, first, here was criminal law theoretically analyzed, nature of special law and situation of discussion about that, for example, how the special law was in the criminal law discussed, more concretely, pointed out that excesses of special law discussed so far does not closely related to the subject of this study and lex specialis-principle was discussed in the diversity of crime in the general theory of criminal law, more concretly special relation of competition of provision. However, this lex specialis-principle related to special relation of competition of provision does not directly related to the subject of this study, because lex specialis-principle here is limiting the discussion of special relation inside the criminal law. So in this study was analyzed the nature of special law and lex specialis-principle. Moreover, argument of exception to lex specialis-principle was reviewed. Especially, even if exception to lex specialis-principle was not criminal law theoretically confirmed, it was approved by the decisions of the Korean Supreme Court(KSC) and was ruled constitutionally by the Korean Constitutional Court(KCC). KSC found the ground of exception to lex specialis-principle in prosecutor’s prosecutorial discretion. So in this study was reviewed the nature of opportunity principle, in order to confirm whether exception to lex specialis-principle is based on prosecutor’s prosecutorial discretion, and its limit on its grounds. In addition, the KSC had ruled that if the prosecutor indicted the suspect violating the general law and the special law simultaneously with the general law instead of the special law having heavier penalty compared with penalty of general law, the court of law could not have punished the defendant with the special law without modification of indictment. According to this decision, even if the prosecutor indicted the case which he have to indict with the special law allowing the defendant heavier penalty with the general law, the court can not punish the defendant with the special law instead of the general law, in order to make prosecutor’s wrong indictment correct. So, even if the jurisdiction is distorted like this, the way improving this problem was blocked fundamentally. This study is pointing out these problems and will give the reform measure about that at first hand.

Ⅰ. 들어가는 말

Ⅱ. 특별법 우선 법리와 그 예외에 관한 지금까지의 논의상황

Ⅲ. 특별법 우선 법리에 있어 특별법의 개념

Ⅳ. 특별법 우선 법리와 그 본질

Ⅴ. 특별법 우선 법리의 예외의 법적 근거와 정당성

Ⅵ. 나가는 말

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