Problems and Future Tasks of Penal Provisions in Promotion Legislation

A promotion-oriented legal framework refers to laws whose titles include terms such as “promotion,” “support,” “fostering,” “facilitation,” or “development,” and which aim to provide policy-based support to specific industries, firms, regions, or social groups. Beyond formal classification, such legislation can be substantively defined as laws that contain provisions for the provision of benefits based on policy needs for the public good. Along with framework acts and special acts, promotion-oriented legislation constitutes a form of policy-oriented legislation, and in particular represents an action-oriented legal framework that contributes to the realization of national policy goals through support and inducement. Most such laws follow a common structure—“General Provisions – Planning – Support Systems – Project Implementation – Supplementary Provisions and Penalties”—and are characterized by the necessity of accompanying fiscal expenditures.

In recent years, promotion-oriented legislation has been actively enacted across a wide range of areas, including culture, industry, technology, education, and regional development, with most laws primarily aimed at providing public support and policy incentives. However, controversy has arisen as some promotion-oriented laws include excessive punitive provisions that do not align with their original purpose. By nature, promotion-oriented legislation is intended to establish a legal basis for government support and, in principle, should either exclude regulations and penalties imposed on the public or address them only on an exceptional basis.

An analysis of the current status of punitive provisions in promotion-oriented legislation (a comprehensive review of 74 promotion-oriented laws identified through a keyword search for “promotion act” in the National Law Information System) reveals the following: 27 laws (36.5%) contain criminal penalties; 36 laws (48.6%) include administrative fines; and 34 laws (45.9%) contain no punitive provisions. The severity of penalties varies widely, ranging from life imprisonment as the maximum custodial sentence, to criminal fines of up to KRW 100 million, and administrative fines of up to KRW 30 million. Penalties tend to be more severe in areas related to technology and safety.

Based on the identification of the top three promotion-oriented laws with excessive punitive provisions, the results are as follows. First, the Construction Technology Promotion Act, which imposes penalties of up to life imprisonment and fines of up to KRW 100 million, including life imprisonment in cases of serious loss of life resulting from violations of defect liability, as well as administrative fines of up to KRW 20 million. Second, the Salt Industry Promotion Act, which imposes penalties of up to 10 years’ imprisonment and fines of up to KRW 100 million for violations related to edible and non-edible salt, with separate punishment for negligent offenses. Third, the National Sports Promotion Act, which imposes penalties of up to 7 years’ imprisonment and fines of up to KRW 70 million, along with additional sanctions such as suspension of qualifications, confiscation, and concurrent penalties.

The analysis of problems associated with punitive provisions in promotion-oriented legislation identifies four key issues. First, violation of the principle of proportionality, as excessive criminal penalties are imposed regardless of the severity of the violation, contrary to the promotional purpose of the legislation. Second, the risk of double punishment, where imprisonment, criminal fines, and administrative fines may be imposed simultaneously, undermining legal certainty. Third, reduced policy effectiveness and erosion of the promotional intent, as enforcement focused on criminal punishment and excessive penalties can discourage business activity and technological development, thereby conflicting with the original legislative purpose. Fourth, increased administrative and social costs arising from the assessment and enforcement of legal violations.

As future improvement tasks for punitive provisions in promotion-oriented legislation, the study proposes the following five measures. First, the gradual abolition of criminal penalties and transition to administrative fines, reducing the scope of criminal punishment and shifting sanctions toward administrative penalties. Second, the prioritization of exhortatory provisions or corrective orders, providing opportunities for administrative correction rather than immediate punishment. Third, the prevention of double punishment, including the abolition of combined imprisonment and fines as well as joint liability provisions. Fourth, the substitution of punitive measures with support-exclusion mechanisms, such as exclusion from government support, termination of agreements, or suspension of qualifications. Fifth, the establishment of the principles of proportionality and last resort, ensuring that only minimal and purpose-aligned punitive provisions are introduced at the legislative stage.

In conclusion, since promotion-oriented legislation aims to achieve public objectives through policy incentives, excessive criminal penalties and punitive provisions undermine proportionality and effectiveness, suppress business activity, industrial promotion, and technological development, and ultimately conflict with the original legislative intent. First, there is a need for a systematic shift and reorganization toward a framework centered on non-criminal sanctions and administrative order penalties, such as administrative fines, confiscation, and exclusion from support. Existing custodial sentences and criminal fines should be streamlined to the greatest extent possible and retained only as a last resort, while progressively transitioning to administrative fines. Second, the current approach to imposing administrative fines should be replaced with administrative measures such as exclusion from support programs or suspension of eligibility.



I. Introduction: Concept of Promotion-Oriented Legislation and the Need to Discuss Punitive Provisions

Concept and Functions of Promotion-Oriented Legislation

Legislative Trends in Promotion-Oriented Laws and the Need for Discussion on Punitive Provisions

II. Current Status of Punitive Provisions in Promotion-Oriented Legislation

Overview of Punitive Provisions

Severity of Punishment

Selection of the Top Three Promotion-Oriented Laws with Excessive Punitive Provisions

III. Problems and Improvement Tasks for Punitive Provisions

Problems with Punitive Provisions in Promotion-Oriented Legislation

Improvement Tasks for Punitive Provisions

IV. Conclusion: Transition from Criminal Punishment to Administrative Order Penalties and Administrative Measures

References

Korean version: https://www.cfe.org/20250513_27620