음란물죄 (淫亂物罪)에서의 음란성

진계호 전주대학교 사회과학연구원 1998 정책과학논총 Vol.14 No.1

自白排除法則

陳癸鎬 전주대학교 사회과학연구소 1999 社會科學論叢 Vol.15 No.-

信賴의 原則의 形成ㆍ發達에 關한 硏究

陳癸鎬 全州大學校 1985 論文集 Vol.14 No.-

This article is to study deveopment and theoreitcal ground on the principle of faith in crimima neglignece. The principle of faith is usuallyh a principle established from the judicial precedent in connected with the traffic accisdent b ased on the thought to distribute social danger properly in order to reduce the power of attention of businessman to some enxtent. Then, where some practical accident comes into existence the conc4ete criterion on which any regligence can be acknowledged is reguired because the constituent reguisite of criminal negligence is opened. But the content of concrete criterion is nothing for it but to be empty although extention can be decided according to the forseeable possib ility and duty to dodge any results as the content of duty to attend. Thus, the legal principle of the permitted danger and the principle of faith which had a practical function had been com into being as one of duty to dodge in criminal negligence. But the legal interest upon human life and body which can not exchange with other interest can never4 b e negligent although it performs its essential mission with the application of this principle in connection with automobile traffic or human life. Moreover, National compensaion by the system of social security or the system of compensation by the principle of responsibiliklty on the compensation of civil nonnegligence upon employer is reguired to be provided although the infringement of legal interest caused by the dangerous action of permitted business can be evaded from responsibility by the application of this principle. Then, the biggest weak point which the princeple of faith has is upon the uncertainty of concept in viewpoint of the standard to recognize it. For example, any standards of judicial precedeent like equivalency to societyor special circumstances make this principle inot abstracted situation. In conclusion, the principle of faith is only of legal principle which is in the process of formation, rather than legal principle established internally. We must expect accumulation of judicial decisions and the development of theories much more from these viewpoint as well as individualization and typification of standard in order to conquer the abstract idea of this principle.

美合衆國의 敎正實態에 관한 考察

陳癸鎬 전주대학교 1982 論文集 Vol.11 No.-

The United States is now undergoing a period of profound reexamination about the entire field of criminal justice, including correction. This reexamination has been prompted by public concern over the fact that Crime, particularly violent crime, it is rising precipitously. This law enforcement agencies are blamed for not apprehending more criminals, the courts for not convicting and sentencing more of them to prison, and correctional institutions for not rehabilitating them. Then, the traditional theory of punishment, under which the nature of punishment should be retribution and punishment itself is mere evil carried upon the convicted person, is bound to be criticized both for being lack of reasonableness and humanitarian argument. As a result of such a reasonable criticism, punishment must be a sort of educational methods for him to be sound personally and socially, but it is impossible to attain to these purposes without the reform of punishment. With that view, all of the nations are used to try to improve all of these point through the modification of criminal law. It is also not exception in the United States. The United States has invented the variety of correctional institutions persistently from the beginning of William Penn in Pensilvania up to now about the method of rehabilitation. The America Correctional Association emphasizes especially the importance about the matter of the rehabilitation of the Criminal. And Dr. Martinson studied reports of rehabilitation programs carried out in prisons and in outside communities throughout the world from 1945 through 1967. But the results, published in 1974, were discouraging for those looking for panaceas. Under his reports the rehabilitation efforts that have been reported so far have had not appreciable effect on recidivism with few and isolated exceptions. But we must remember the words of Chief Justic Warren Burger. By him, "we take on a burden when we put a man behinds walls and that burden is to give him a chance to change. If we deny him that, we deny his status as seeds of future anguish for ourselves." Then it is insisted persistently that the correction to the criminals is impossible only by correctional administrators. In a summary of workshop reports at the National Conference on Corrections in 1971 also reported that correctional staffs lack confidence in their own ability to produce the rehabilitative efforts which society expects of them. From the view points of these, it is pointed that any intervention by the courts in the administration of prisons is irresistible. The Feneral Bureau of Prisons in October, 1974, also adopted a new administrative remedies procedure by which offenders may seek formal review of complaints which relate to their imprisonment. As a matter of fact, to move from the slave of the state decision of Ruffin V, Virginia in 1871 to the due process standards of Waff v, McDonnel in 1974 required half the lifetime of the United States.

保安處分에 關한 硏究

陳癸鎬 全州大學校 1981 論文集 Vol.10 No.-

There are many discussions on measure of safety in the circle of criminal law students. It is usual that criminal law comprises not only the penalty in sanction about past crime but also the measure of safety aiming at prevention of future crime when we consider penalty into the measure of social prevention or rehabilitation in its nature. Our criminal law alone does not comprise measure of safety into the contents of criminal law, but each country comprises measure of safety into the contents of criminal law as remarked following discussions. Although the theory of this study is divided into dualism and monism on the connection of penalty and measure of Safety, when we, in fact, consider the nature of penalty into social prevention or the measure of social rehabilitation, the final end of criminal law is based on monism in penalty and measure of safety, I think. Then, it is well known that measure of safety was frequently used for the maintenance-function of political systems apart from the aim as to protective measure in welfare for protection of the social weak in the light of humanism. Thus, thought which principle of legality is the most important Bill of Rights arose again since the second World War. In here, we must keep in mind that there must be moral permissions upon the indixidual as well as requirements for the public safeties in the exercise of all measure of safety.

刑事訴訟法上 傳聞法則의 例外規定

진계호 전주대학교 비교법학연구소 2000 비교법학 Vol.1 No.-

傳聞法則

陳癸鎬 전주대학교 1999 論文集 Vol.24 No.1

高級犯罪(White-collar crime)에 關한 理論的 硏究

陳癸鎬 전주대학교 1977 論文集 Vol.6 No.-

矯正形論에 關한 硏究

陳癸鎬 전주대학교 1980 論文集 Vol.9 No.-

In the attempt to make a research of the nature of punishment, I have viewed a great many different theories on the subject and now have found it appropriate to criticized and sum hem up all. The classical theory of punishment, under which the nature of punishment should be retribution and punishment itself is mere evil carried upon convicted person, is bound to be criticized both for being lack of reasonableness and humanitarian argument. As a result of such a reasonable criticism, punishment must be a sort of educational methods for convicted persons, rehabilitative urgement for him to be sound personally and socially. It promptly set up purposefull theory of punishment in trying to take execution for correctional institution, not executing a penalty. But the problem is about whether or not there will be a man of un-rehabilitative possibility whom purposeful theoretician has presupposed. We know the existence of such a criminal unrehabilitatived experimentally by our efforts but we come to find that medical doctor dose not neglect researching about cure of cancer even though it is hard to heal a cancer. Same for a criminal. Who dare to persist on strong theoretical basis that a man of unrehabilitative possibility should be separate from society? The answered must be in settlement by an educational theory of punishment. And I have not any opposition in taking an educational theory of punishment as an essential theory of modern-day punishment. But I dare to urge the rehabilitative punishment replacing an educational theory of punishment. Of course, the intent of an educational theory of punishment isn't different from that of the rehabilitative punishment. But when taking dynamic, temporal process of punishment into consideration and when considering punishment of material meaning into executive stage, I find it proper to take an expression of rehabilitative punishment to emphasize a characteristic of correctional institution rather than that of an educational theory of punishment.

백카리아의 古典刑事學에 관한 硏究

陳癸鎬 전주대학교 정책과학연구소 1986 정책과학논총 Vol.2 No.-

In the broad scope of history, there are two basic types of theories of crime. One relies on spiritual, or other-world, explanations while the other relies on natural, or this-world, explanation. Spiritual explanations of crime are part of a general view of life in which many events are believed to be the result of the influence of otherworldly powers. In the Middle Ages in Europe a spiritual view of the world was joined to the political and social organization of feualism to produce the beginnings of the criminal justice system. In opposition to this spiritual explanations of crime, natural explanations make use of objects and events in the material world to explain the same things. The early Phoenicians and Greeks developed naturalistic, this-world explanations far back in their history. By the first century B.C. Roman thought had become thoroughly infused with the naturalism of the Greek scholars. In the sixteenth and seventeenth centuries writers such as Hobbes, Spinoza, Descartes, and Leibniz studied human affairs as physicists study matter, impersonally and quantitatively. Modern social science continues this natural emphasis. Then, the classical and neoclassical schools represent an abandoning of the supernatural as an explanation of criminal behavior. The early classical criminologists argued that humans act on the basis of reason and intelligence and therefore are responsible for their own actions. In this view humans are said to be capable of understanding themselves and of acting to promote their own best interests. And the key to social progress is said to be intelligent behavior brought about by careful training and education. Thus, the classical school marks the beginnings of the rationalistic, bureaucratic approach to criminal procedure.