사회봉사명령의 의의 및 한계

The Meaning and Limit of Community Service Order

The Supreme Court of Korea pronounced that the court is not permitted to order the accused to make a donation and the like as the community service order of the Criminal Law. As there is no regulation about the definition, aim, types, contents, execution procedure of the community service order in the Criminal Law, This existing regulations about the community service order seem to be against the principle of “nulla poena sine lege. But the community service is a word with various meanings, and it is possible to give a concrete form to it by construction and let it be compatible with the principle. In my opinion to make restitution of an illegal profit, that is, make a donation can be a type of “the community service of the Criminal Law for the following reason. 1) the community service means unpaid work or donation for the public weal in the common acceptation of the word. 2) the Probation Act doesn t provide that the court cannot order the accused to make a donation in the community service order(it just prescribes that the maximum execution limit is 500 hours when the court order the accused to provide unpaid work in the community service order). 3) the interpretation that making a donation can be a type of the community service not only closes a gap between imprisonment and suspended sentence, but also leads to a decision more harmonized with the accused s conditions. 4) the United Kingdom, United States of America, France, Germany, etc also try to interpret and manage the community service variously. The Supreme Court s decision conforms to the principle of “nulla poena sine lege” too rigidly. It’s a great pity that the Supreme Court s decision limit the types of community service.