現行 刑事訴訟法上의 人身拘束制度 : 逮捕制度를 중심으로

김균보 부산대학교 법학연구소 1998 법학연구 Vol.39 No.1

行爲槪念의 硏究

金均保 釜山敎育大學 1968 부산교육대학 논문집 Vol.4 No.1

The concept of behavior is situated in a core of criminal theory in mordern criminal law. And so it is the problem if the concept of behavior could be a highest unifidied element in the system of criminal law. Nowadays in the theory of behavior the "kausal Handlungslehre" and "finale Handlungslehre" have more important meaning. The former is trying to explain existenting structure of behavior by "Kausalita¨t", the latter, by the "Finalita¨t". The "finale Handlungslehre" is a theory which arose to assert for the supplement of the defect of "kausal Handlunngslehre", but the problem is that if we can explain all the crimes by the unified concept of behavior in the criminal law, that is to say, this theory could be the one to connote all the "Kommissivdelikt" and "Unterlassungsdelikt by "Vorsatz" and "Fahrla¨ssigkeit". Particularly, the "kausal Handlungslehre" can not explain the "Unterlassungsdelikt" by "Fahrla¨ssigkeit," because it lacks these characters of the voluntarity and of the materiality. On the contrary, the "finale Handlungslehre" can explain such a crime reasonably. However, in the first, this theory was confronted with many difficulties, but it amployed the "menschliches Verhalten" as the foundation of criminal theory and explained it by the "menschlichen finalen Tatmacht". Of course, some scholars are so critical for this theory, and also it is necessary to develope this theory. But at this monent we should assert that only this theory could explain all the crimes by the unified concept.

刑事被害者補償制度에 관한 考察

김균보 釜山敎育大學 1975 부산교육대학 논문집 Vol.11 No.2

The Compensation of Victims of Crime means to restitute by the state or public body for victims of his Surviving family to whom had been injured by crime, Nowadays, it appears a important social problem and come up for discussion. The matter of concern in the criminial policy by this time was devoted to the problem guaranteeing the right of criminals. On the contrarg, the protect of the injured was indifferent. The injury by crime was raised a great tragedy to the injured or his surviuing family and so we must not fail to notice his misfortuen not only in social side but in humanitarian side. The man proposed first the moderm proposition was miss M.Fry in England, and then it was an opportunity to systemize at there. There are some states which was adopted this system, namely, New Zealand, England, America, Canada, Australia, Sweden and Swiss. In this paper, I will take a general survey to its character, sphere and the present working condition in England. Ⅰ. The character of the compensation for Victims. ⅰ) An opinion of right to claim the Compensation ⅱ) An opnion of Ex gratia But it can not explain it by the only one side, because of it's compounded character. Ⅱ. The working Condition ⅰ) The limit of application ⓐ It is defined to the personal injury, which was directly attributable to a crime of violence, which was aroused by helping the policeman to arrest or supress criminals. But the concept of violent crime is very widely interpreted. ⓑ It takes a method to prevent an unreasonable compensation. ⅱ) It's organ and procedure. The responsibility for it's administration is held by Criminall Injuries Compensation Comittee with five commissioner who was appointed by the Home Secretary. and as a general rule, it takes the examination of papers Ⅲ. Conclusion. To put such a system, it is absolutely necessarry the background of the developed economic condition. And so there are many other states which could'nt realize it because of their economic condition. We must realize the compensation for victims of crime at the least from the humanitarian point of view.

共犯理論에 있어서 몇가지 問題 (1)

金均保 釜山敎育大學 1979 부산교육대학 논문집 Vol.15 No.1

犯罪論上 期待可能性의 體系的 地位

金均保 釜山敎育大學 1967 부산교육대학 논문집 Vol.3 No.1

The "Zumutbarkeit" is a central idea of normative responsibility and a theory which has been developed first in Germany. Here the point of the problem involved that the theory, having displayed a cure all effect at one time, is interpreted restrictly as the "u¨bergesetzliche Entschuldigungsgru¨nde" on the german legal theory and Judicial precedents in these days. And now when we re-examine it's systematic stand on the criminal theory, can we maintain it only as the "gesetzliche Entschuldigungsgru¨nde" in the criminal law? In the modern complicated society there are many unforeseen accidents which can't be disciplined only by the law When an actor commits a crime really under unreproachable circumstances, it is very unreasonable that the responsibility can't be exempted, only because it's unapplicable to exemption-ordinance in the criminal law And so the "Zumutbarkeit" must be not only the gesetzliche Entschuldihungsgru¨nde" on the law. But the u¨bergesetzliche Entschuldigungsgru¨nde allowable for the first time when it's really impossible to expect an actor to do the legal act, it does not weaken the systematical function of the criminal law nor bring about the relaxation of it's order.

共犯理論에 있어서 몇가지 問題 (Ⅱ)

金均保 釜山敎育大學 1980 부산교육대학 논문집 Vol.16 No.1

Reanimator의 遮斷과 不作爲

金均保 釜山敎育大學 1978 부산교육대학 논문집 Vol.14 No.1

過失犯의 構造硏究 : 客觀的 注意義務違反의 體系的 地位 Der Systematische Stand der objektiven Sorgfaltspflichtwi drigkeit

金均保 釜山敎育大學 1969 부산교육대학 논문집 Vol.5 No.1

The rapid progress of the mechanical civilization in human society increased not only the risk of human life, but also the violation of legal interests. Under such social conditions, the "Fahrla¨ssigkeitsdelikt" which has been lightly treated until now suggests new problems on the modern criminal law, and we need to review the structure of the "Fahrla¨ssigkeitsdelikt". In this paper I particularly intend to discuss the systematic position of the violation of the "objektive Sorgfaltspflicht" that is the core in the Fahrla¨ssigkeitsdelikt. In the former theory, the "Rechtswidrigkeit" in the Fahrla¨ssigkeitsdelikt was Known as a violation or menace of the legal interest by the optional voluntary behaviour, and the optional voluntary behaviour was a main element in the responsibility-theory violating the "objektive. Sorgfaltspflicht". It was debated mainly on the responsib ility-theory. And so the "kausale Handlungslehre", if the legal interest were to be violated as the results of the causal behaviour, recognizes that there is illegality, therefore the advocates of the theory seldom debates the "Tatbestandsma¨ssigkeit" and "Rechtswidrigkeit of Fahrla¨ssigkeitsdelikt". On the other hand, the "finale Handlungslehre" has become to recognize that "Rechtswidrigkeit of Fahrla¨ssigkeitsdelikt" is not only caused by the results of so called "violation of legal interests", but also it is caused by the unsuitably executed behaviour that is the behaviour of violation of the "objektive Sorgfaltspflicht" that consists in the contents of the "Tatbestand" in the "Fahrla¨ssigkeitsdelikt". Accordingly, that theory insists that the violation of the "objektive Sorgfaltspflicht" is the element of the "Rechtswidrigkeit" or "Tatbestand". Particularly, Welzel changed his former opinions, he insists that the violation of the "objektive Sorgfaltspflicht is the element of the "Tatbestand", and "Fahrla¨ssigkeitsdelik." should be put into the same category as the "Vorsatzdelikt" when it actually commits the "Tatbestand" and Rechtswidrigkeit", and so the matter of the responsibility of the performer should be discussed. This is the reason why the "Fahrla¨ssigkeitsdelikt" is regarded as the same as Vorsatzdelikt. As mentional above, Welzel's new opinion is reasonable, and the "Tatbestand of Fahrla¨ssigkeitsdelikt" has a function of the illegality-estimation. And so the "tatbestandsma¨ssige Fahrla¨ssigkeitshancllung will be claimed as illegal as for as there is not a reason of the illegality-elimination.

刑事制裁와 性的自由

金均保 釜山敎育大學 1972 부산교육대학 논문집 Vol.8 No.1

Nowadays, the movement of sexualfreedom sweeps over all of the world with a powerful influence. Ttinevitably changes the traditional view of the morality and examines the function of the criminal law, becauge the value of thigs is restricted by time and space. In this paper the writer, in order to find a right course to settle such kind of social problems, has made a general survey of the usual judicial precedents and theories in foreign countries, and has inquired into the movement to reform the criminal law in West Germany and America in recent year. As the result of this, the writer assert that the criminal law should move on forwards the decriminalisation and alternate it's place with the administrative regulation.

刑法에 있어서 責任主義의 再檢討

金均保 釜山敎育大學 1976 부산교육대학 논문집 Vol.12 No.2

The economic growth and industrial development are causing a new type of criminal phenomenon in the modern society. Along with this phenomenon, a new type of problems that aer caused by corporate bodies are developing, from which the citizens must be protected. In oroler to solve such problems, the control of the situation involved by the administrative order and guidance has to be done effectivelly, but the actual result is far below one's expectation. It is for this reason that a new "theory of corprate body responsibility" should be asserted. This theory recogniges the criminal act-ability of legal person and also asserts to amend the theory of individual acter-responsibility. This theory is the opinion of a legal person as a whold one body. Especiolly, "the nature of fault" according to this theory is to be found not in the violation of foreseeablemess of consequence, but in the violation of responsibility to avoid it's consequence. Against this theory, there are some criticism from the side of security for human rights. From the view point of the principles of criminal law, there are some delicate phases involved in order to draw a conclusion that the corporate body has the criminal act-ability of legal person. The legal person itself which is originally established for the purpose of carring out lawful public work or the profitable private work, can practically bring about such situation as to threaten the civil life in course of the business undertaking. If we can say that it is necessary to prevent such problems with criminal sanction, we have no positive ground to eliminate the criminal ability of legal person from the view point of the principles of criminal law. It is a generally accepted opinion that citizens should be protected from the enterprise evils, and so the strong legislative measure is claimed in the policy of law-making.