경제범죄의 실태와 대책에 관한 연구 = (A)study on an actual state and the countermeasure of the economic crime

다국어 초록 (Multilingual Abstract)

Abstract

A Study on an Actual State and the Countermeasure of the Economic Crime

Ok, Pil-Hun
Department of Law
Graduate School
Chonbuk National University


In Korea, there had been treated with the term 'Economic Crime' or 'Economic Criminal Offence' against several types of economic law since 1960 and there had an effective policy of the economic crime that has risen through in 1970 and in 1980 however, in fact, there was no realistic definition as to what is a economic crime. In consideration of a tremendous economic crisis called 'Lee, Chol-Hee & Chang, Young-Ja's case in 1982, Myung-Sung's case and Young-Dong' case in 1983, that is a legislative alternative proposal over a simple criminal offence because of treating as a economic crime differing from a property crime in criminal law as a behaviour that can break a national economy as well as faith of financial commerce. Thus, 'A special Act on a intensified punishment of economic crime in 1984 was a result of endeavor in that time. And a society that means 'a diligent person lives a wealthy life' was no meaning any more because of a monetary worship and ethical non-emotion in all social areas after IMF period. As a economic recession lasts long-dated, the police reports that there is more increasing rate 30.3% in 2004 than in 2003 concerning a economic crime. In case of a economic crime that becomes an abstract hazardous crime, the important problem is a co-operative responsibility owing to role of victim. In analysis of actual state of economic crime, more focusing part considering all protective categories such as financial economy, national economy, corporate economy and consumption economy is that social sacrifice cost is to be high, the number of victim is to be high, and there is a difficulty from the arrest, examination and prosecution of economic crime than a conventional crime. Until now, there is no much discussion on economic crime containing its legal interpretation, its real analysis and its cause and its countermeasure. This thesis approaches systematically by treating a crime matter related to economy not by suggesting measure of economic matter in Korea. Without a legislative countermeasure and a conservative thought owing to high-technology and complexity of economic structure, new type of economic crime can not be prevented. In particular, there has a difficulty in the efficiency for the crime countermeasure by insufficiency of the related specialist in guard system and non-concentration operation in criminal justice system.

The category and method of this research is as follows.
The cognitive category in economic crime is a damage against legal benefit within individual dimension, however, the important point is the realistic amount of victim, degree of victim, the difficulty of prosecution against the subject of crime by organic, specialized and talented personality. In this research, the chapter 1 shows the object of this research, the method of this research and so on. The chapter 2 discusses with definitive meaning of diverse economic crime. The pursuit of concept that connects diverse concept of economic crime and practical discussion is needed in order to have a object of this research. The chapter 3 is the study on the actual state of economic crime. The actual state can be understood by analyzing the individual type of crime since IMF crisis in 1997. Furthermore, the crime factor of economic crime includes a illegal use of tax haven, international commerce forgery, forgery loan by window dressing in accounting, Internet security crime as new types of economic crime and the research. The chapter 4 treat with the countermeasure of economic crime. This thesis discussed criminal justicial, criminal political and legislative countermeasure through all parts of economic crimes with previous result of research. The chapter 5 summarized this dissertation. This research analyzed research report, crime report, all statistical data and academic thesis through theoretical review of literature in particular. And in consideration of technical method, this research approached as normative systematic method with factual and legal language.

This dissertation is summerized as follows.
The economic crime is a crime which prevents operation of economy by breaking the general faith from economic system or all spheres. As a characteristics of economic crime, it points out that the crimes are talented, specialized and organized, and also there is no easy to mention the proper punishment owing to breaking super-individual legal benefit. This research focused on the actual state and the countermeasure of the economic crime by based on finding the definitive meaning and the typological methods of economic crime. In this research, there are definitive meanings such as a criminological theory, a criminal investigative work, a criminal law's theory and a special criminal law. In this paper, the economic crime means 'a behaviour which causes a great loss of property by infringing, threatening social or super-individual legal benefit by using illegal means such as important social status throughout the infringement of faith which is demanded in economic life' in consideration of legal theoretical viewpoint. This research chose such a legal theoretical viewpoint as follows : Firstly, a national financial crime can contain a financial import crime(tax and custom crime), a financial expenditure crime(forgery against a national subsidy) and so on. Secondly, a national economic crime can contain a monopoly and unjust commerce behaviour, a crime preventing a financial commerce, an industry spy crime and so on. Thirdly, a corporate economy crime can contain a crime preventing a corporate crime, a crime preventing an industrial property right, an industrial spy crime and so on. Fourthly, a consumption economy crime can contain a forgery of advertisement, a forgery of bankruptcy, security crime and so on. Fifthly, others can contain a computer crime. The actual state of economic crime is increasing quantitatively each year, and qualitatively the economic order is complex, the sphere of hidden crime is so great that the responsive countermeasure from legal and systematic viewpoint is insufficient. In recent times, new types of crime factor is revealed with high technology and change of economic life as follows. Firstly, Case which has tax haven by establishing paper company owing to a remarkable development of international commerce, Secondly, quasi-monetary loan behaviour, money lent behaviour at high interest, irregular gift or inheritance using CB (convertible bond) or BW (Bond with Warrant) illegally owing to diversity of economic environment, Thirdly, forgery loan by window dressing in accounting in the name of neo-financial technique owing to complexity of economic environment and diversity of commerce concept, Fourthly, illegal behaviour which means public capital or public fund, Fifthly, new cyber crime such as Internet security crime, Internet forgery and so on with rapid development of computer and Internet technology. As to new types of economic crime which use new strategy or avoid a given legal limit, it is important to train specialized investigators and establishment of specialized department. A general problem of economic crime contains insufficiency of the crime cognizance means, insufficiency of the crime classification and management, absence of control principle and diversity of the control procedure. And a sanction of economic crime divides civil sanction, criminal sanction and administrative sanction. Finally, the countermeasure of economic crime is as follows. Firstly, the criminal justicial countermeasure contains specialization of investigation, operation of specialized department, criminal sanction of judicial person, improvement of punishment system, control of money laundering and so on, the criminal political countermeasure contains computerization of criminal justice system and so on, and the legislative countermeasure contains co-operation of international control system, legislative supplement work and so on. In summery, control regulation concerning the economic crime in Korea, in fact, has been used for attaining an economic administrative regulation or criminal policy, however, in particular, continuous energetic research of economic crime should be forwarded in order to prevent the offending such as several types of economic crime after IMF economic crisis properly.

This research exerted my strength of keeping shape of dissertation with same thought cover to cover and focused on the actual state of economic crime by using crime report starting from theoretical viewpoint. However, it is necessary to find several types of crime factor, study of its typology and individual countermeasures from long-term eyes within changing economic environment continuously.

목차 (Table of Contents)

• 제1장 서론 ……………………………………………… 1
• 제1절 연구의 목적 ……………………………………… 1
• 제2절 연구의 범위와 방법 ……………………………… 2
• 제2장 경제범죄의 개념과 유형 ……………………… 4
• 제1절 경제범죄의 개념 ………………………………… 4
• I. 광․협의의 경제범죄의 개념 …………………………… 4
• II. 경제범죄의 일반원칙………………………………… 20
• 제2절 경제범죄의 유형 ……………………………………22
• I. 학설상의 논의 …………………………………………22
• II. 실무상의 논의 …………………………………………25
• III. 소결 ………………………………………………… 26
• 제3장 경제범죄의 실태와 원인…………………………27
• 제1절 경제범죄의 일반현황 ………………………………27
• I. 경제범죄에 있어서의 고려사항 ……………………… 28
• II. IMF시대의 범죄동향 ………………………………… 28
• III. 경제범죄의 발생현황 ………………………………… 29
• 제2절 경제범죄의 유형별 현황…………………………… 34
• I. 국가재정 관련범죄 …………………………………… 34
• II. 국민경제 관련범죄…………………………………… 39
• III. 기업경제 관련범죄…………………………………… 67
• IV. 소비경제 관련범죄…………………………………… 86
• 제3절 경제범죄의 새로운 유형과 실태 ………………… 102
• I. 국제거래의 발달……………………………………… 103
• II. 경제시장의 다양화…………………………………… 107
• III. 분식회계 …………………………………………… 113
• IV. 외환위기 …………………………………………… 119
• V. 인터넷 문화 ………………………………………… 124
• 제4절 경제범죄의 발생원인 ……………………………… 129
• I. 사회환경상의 원인 …………………………………… 130
• II. 국가규제상의 원인 …………………………………… 131
• III. 경제조직상의 원인 ……………………………………132
• 제4장 경제범죄의 대책 ……………………………… 133
• 제1절 경제범죄 규제의 역사 …………………………… 133
• I. 미국 ………………………………………………… 133
• II. 독일………………………………………………… 135
• III. 일본………………………………………………… 139
• IV. 우리나라…………………………………………… 142
• V. 소결………………………………………………… 144
• 제2절 경제범죄의 규제현황……………………………… 144
• I. 경제범죄의 규제대책 ………………………………… 144
• II. 경제범죄에 대한 제재수단…………………………… 170
• 제3절 경제범죄규제의 문제점과 개선방향 ………………189
• I. 경제범죄규제의 문제점 ……………………………… 189
• II. 경제범죄규제의 개선방향 …………………………… 195
• 제4절 피해자보호 ……………………………………… 200
• I. 입법상의 한계………………………………………… 200
• II. 구체적 방안……………………………………………202
• 제5장 결론……………………………………………… 206
• 참고문헌 ………………………………………………… 209