A Case Study on some Problems of Administrative Punishment Regulations in the Field of the Korean Public Land Law
The term "administrative punishment" means "criminal punishment, such as imprisonment or fine, for violating administrative statutes." "Administrative punishment" is to impose criminal punishment, so the limits of the constitutional principle of "criminal justice" must be kept. Criminal punishment should be subject to only substantial crimes, which means "significant social and harmful acts of legal interest." Punishment should be the least necessary means of suppressing a crime. Punishment shall not be imposed if any other legal means other than punishment, i.e. administrative coercion or administrative fine, can achieve its purpose.
However, there has been a constant problem in the Republic of Korea that the legislation of administrative punishment is quite contrary to the general principles of the Constitution and administrative law above. I sympathized with the question of "the legislation of administrative punishment is indiscriminate, unconstitutional in some cases, and very excessive legislation.“ Based on the above problem consciousness, this paper empirically analyzed the rules of administrative punishment prescribed in the law corresponding to the field of "Korean Public Land Law". The results pointed out that the following three problems were particularly noticeable and suggested ways to improve them.
First, this article pointed out 10 specific cases in which the Act "does not specifically define the scope" or "comprehensive" enforcement rules or ordinances of local governments, and further proposed measures for improvement, such as Article 53 of the Building Act etc.
Second, this article pointed out eight problematic cases that stipulated criminal punishment for violating orders from the administrative office, not violating statutes, and proposed measures to improve them, such as Article 13 of the Building Act etc.
Third, specific cases of criminal punishment for failing to report were listed, the problems were pointed out, and measures for improvement were proposed, such as Article 111 and Article 19 of the Building Act etc.
The core of the improvement measures presented by this paper can be summarized in two sentences: First, the "administrative punishment" especially the criminal punishment of imprisonment of the people who use the national territory and engage in construction activities for violating regulations under the administrative law should be limited to only necessary and minimal cases, and only to exceptional cases.
Second, if it is necessary for the administrative office to enforce it in the process of taking administrative action in order to achieve the administrative purpose, it shall faithfully adhere to the principle that the inherent "administrative enforcement" means should be utilized under the administrative law.