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- 검색키워드
- 저자 : 鄭京? (검색결과 72 건)
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鄭京植 건국대학교 1978 論文集 Vol.7 No.1
1.Preface The current code of criminal procedure has a compromising character by which a lot of elements of the adversary system based on the Anglo-American Law were introduced to the procedure of the ex officio system represented in the European Continental Law. Discordance arising from such a compromising law is hereby analyzed as follows on the standpoint of comparative law through administrative experiences in the past. 2.The first discordance Discordance could be observed between scurf a substantial law as a German-style criminal code requiring verification of criminal intent as a mental parts and the Anglo-American procedural law under which the probative value of evidence of mental parts is left to the discretion of judges. 3.The second discordance The discordance exists between the old typed tribunal practice disapproving the circumstantial evidence and presumption in the determination of facts and the up-to-date procedural law. 4.The third discordance We could find that, in spite of admitting the right to remain silent, the cureent procedural law, in order to restrict it, tried to reduce the utilization of the presumptive evidence, to mitigate the probative value of the circumstantial evidence and to deny the crime of court insult which meant the defiance of the court order. 5.The fourth discordance While the procedural law refused the jury system, it introduced large amounts of principles rejecting the probative value to the documentary evidences. 6.The fifth discordance Several legal restrictions in gathering evidences have deteriorated the difficulties in litigation activities. In other words, under the procedural law it might be very difficult to conduct fact finding due to overloaded judicial cases as well as a shortage of investigation resources and time limitation. 7.The sixth discordance The disapproval of arrangement system contradicts itself with the inevitable situations to perform a heavy loads of criminal cases in reality. 8.The seventh discordance It could be said that the procedural law established the incompulsory measrues as a general rule in investigation, but neglected such an actual arrangements as an increase of investigation expenses, improvement of investigator'a quality and the solid scientific search. 9.Conclusion The system of Anglo-American Law could be compared with clothing fittable to our body, if wear, though it seemed to be threadbare rags on the surface. On the contrary, our criminal procedural law might be contrasted with clothing feeling uneasy, when we wear, even it could be visible to be a neat and beautiful one on the surface. It would be desirable to take consideration into accordance and proportion in the field of application, instead of saying that our contemporary law is the worst one.
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鄭京植 건국대학교 1977 論文集 Vol.5 No.1
1.Definition of subsidiary offence The term "subsidiary offence" has been frequently uses in various meanings, but in this article it is defined as the cirmes other than formal offence (herefater called as a principal offence), which is dealt with definite procedures (for instance, arrest, detention or indictment), among those offences committed by the same suspects or the accuseds, and it is sometimes called to an offences having possibilities to put on trial. The meaning of subsidiary offence practically is wider than that of the above definition. For instance, undiscovered crimes handled by the investigating agencies comparing with discovers ones as well as untrialed crimes comparing with convicted crimes. Generally speaking, it might be very difficult to conduct investigation for several facts of crime simultaneously. In spite of this fact, a simultaneous trial for several criminal offences is actually requested, as far as possible, in order to avoid reiteration of investigation and trial as well as to take consideration of penal term, in view of the principle of litigating economy in corformity with regulations pertaining to annexed offences in the Penal Code and the Code of Criminal Procedure. Therefore, conception of subsidiary offence has apparently originated in connection wish requirement for simultaneous trial aiming at the interest of the suspects and the accuseds. On the other hand, subsidiary of fence has made so many difficult problems through each step of litigating procedures, especially concerning the confinement of the suspects and the accusers and accordingly, the judgement and attitude relating to this problem have brought a great influence on the status of the suspects and the accuseds. Prior to the main study of subsidiary offence, we have to pay special attention on the criticism that the request of simultaneous trial for this offence, which was principally originated for the interest of the suspects and the accuseds, has brought a result of misappropriation for these people by the investigating agencies in the course of disposition concerning subsidiary offence. 2.Basic standpoint relating to confinement of human body and subsidiary offence Theories on setting a unit concerning confinement of human body is separated into two categories-Unit based on Person or on the case-. Those who are supporting the principle of case-unit have strongly insisted upon the theory that the confinement should be strictly based on principal criminal fact as described on writ of arrest, and the validity of the writ is to be applied for only competent fact thereto. On the contrary, men sticking the principle of suspect-unit have been fimrly insisted on the idea that the confinement of the suspects or the accusers is merely restricted to these defendant in relation with confinement of human body as demanded by the Court. Judging from the comprehension of the existing law, it is deemed to be justifiable construction to adopt the principle of caseunit. Accordingly, several confinements can be exercised to the same suspects or the accusers when the investigation and trial for several criminal facts were conducted. In practical procedures, however, in order to evade complicated procedure, the con-finement has ordinarily carried out for one fact and the other subsidiary offences have usually been investigated or put on trial together with the existing case inclusively. Eventhough, this method is deviated from the original idea of Code of Criminal Procedure, it has beers admitted in practice because of its taking interest of the suspects and the accuseds into consideration. In ease of adopting the principle of case-unit, dual confinements of same person are possible-arrest person on charge of fact A, and arrest him separately on charge of fact B-, but this must be denied on viewpoint of the principle of person unit. The discrepancies of such viewpoint may bring a serious inftuence in the various fields of subsidiary offence. 3.Substantial problems Causes of confinement and subsidiary offence In cases that the subsidiary offences written on the writ of arrest are serious and multiple, we can draw deduction that there is much probability of fight of the arrested It seems to be a unreasonable abuse of confinement to arrest a person in advance for a minor criminal fact in order to investigate serious and important subsidiary offence. Thus, in order to arrest a person for his subsidiary offence there should be some kind of substantial relationship between subsidiary offence and principal offence, that is, both belong to similar facts, or are committed in the same opportunity and so on. b.Cause of extension of confinement and subsidiary offence There might also be an opposition theory in this concern. In the case when offence A and B constitute the fact of the same kind, and when the criminal intention of Offence A becomes clear through the proof of offence B, or whole criminal plan and intention can be obviously proven by means of annexing both two offences A and B (Exp: Illegal possession of weapons, and murder), the investigation of subsidiary offence B could be allowed open as a part of content of principal offence A. This must be admitted because it does not belong to the abuse of extention of arrest. c.Bail and subsidiary offence Although the denial theory being applied in general in the field of confine-ment by standing on the principle of case-unit, and in consideration of human rights stipulated in the Code of criminal procedure, on the occasion of bail, it would be appropriate to make judgement by considering important fact included in an additional indictment by taking consideration of prohibiting dual confinement for a person who is under confinement already. 4.Right of reception by defense counsel and subsidiary offence There might be some question if we could impose some restriction on the right of reception by defense counsel against suspects and the accused involving in a principal offence for the purpose of investigating subsidiary offence, but it had to be permitted in such circumstance that such a imposition of restriction would bring them a serious result toward the investigation of subsidiary offence thereby. 5.Place of confinement and subsidiary offence There is problem about removal of the suspects and the accuseds to the other confinement to perform investigation of subsidiary offence, and this matter should be prudently decided by considering all substantial circumstances as to the result of serious disadvantage to their defense activities and treatment as well as an unfavorable condition in the proceeding of harmonious trial. 6.The circumstantial evidence, assessment of case and subsidiary offence The existance of subsidiary offence have substantially composed of a circumstance of crime, and should be considered as a factor of assessment of case. Sufficient consideration should be taken in the time of decision concerning sum total of principal penalty including days of detention for the unconvicted and penal indemnity.
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