정보위험사회와 형벌규범의 기능변화

이덕인 ( Deok In Lee ) 한국형사정책학회 2002 刑事政策 Vol.14 No.2

The existing legal system has a limitation against the emerging risk society that it is a posterior and outcome-oriented regulatory system. The insufficiency of prior regulation to protect socially important legal interests from damages consequently leads to enactment or enlargement of posterior punishing provisions, however, we can easily presume that it cannot produce reasonable outcomes. In order to find proper and reasonable solutions in relation to the problems above, we need to correctly identify the concept of information risk, and to legally evaluate the risky sources arising out of formation of advanced informatization society. Also, it is essentially required to make efforts to establish the justification of legal-in particular, in the aspect of criminal law-intervention into them. It is assumed that the increasing approach to the information risk society which requires prior regulations on information risks in line with the development of information communication technology is inevitable. Simply maintaining the existing posterior regulative functions without accepting the change of social currents will consequently make it impossible to eliminate the risky sources which would be prevented by the prior minimum expenses. Accordingly, in this informatization society we need to accept, though partially, the formative function of criminal laws rather than to limit the functions and roles of them only to posterior regulations. On the other hand, the prior intervention by laws may be faced with a dilemma that it may act as a mechanism of malfunction to restrain the soft landing to the informatization society while it may prevent the malfunction of the informatization society and eliminate the risky sources of society. In this regard, any intention to keep the informatization society rigid by priority intervention of criminal laws without national consensus should be excluded. In other words, the coping strategies to minimize the malfunction of the informatization society should be established on the basis of national consensus which is agreed through open communicative processes providing various social filtering systems, not the priority intervention of laws.

사형폐지의 정당성

이덕인(Deok In Lee) 중앙법학회 2010 中央法學 Vol.12 No.2

In case of `Judical Murder`, there is not any definite conclusion at this stage if a judicial murder could be ended perfectly even though it is in progress to investigate in recent years. In case of `Wrongful Convictions of the Death Penalty`, also, there is just to point out the possibility and to admit it unofficially among judiciaries, and our Justice Department has been silent. In the investigation stage, a case is fabricated with a false confession by prejudgement starting with an illegal arrest. In the background, there is a doubtful confession, that if a suspect is same as a criminal or not, rather than depending on conclusive evidences. The prosecution, that should directed to the investigation of investigative agencies, prosecutes people without proper identification if a suspect is same as a criminal, and does things like ignoring or hiding negative evidences whether accidentally on purpose or by mistakes. Shameful judicial mistakes, that do not doubt the voluntariness of one`s confession which is the biggest causes of misjudgement and take it as a proof of guilt without confirmatory evidences accidentally on purpose or by mistakes, are appeared at the stage of trial. The testimony of an eyewitness or an partner in crime should be investigated if it is reliable or not, but a judge sentenced to death because he/she made the mistake of not on behalf of the accused due to the prejudgement due to the circumstance. Such reasons could be confirmed through death cases that doubt misjudgement of cases and judicial murders as mentioned. In conclusion, there are no reform measures or alternatives except the abolition of the death penalty not to make victims and innocent men being wrongfully accused. As humans who have errors of the cognitive ability and the limit, the tries to reform the penal system with inherent problems based on those errors and limits can be said to be impossible. So, the job to establish the problem of death by judicial murders and misjudgement as substantial argument for the abolition of the death penalty should be an important task for scholars in the criminal law of common sense. Based on this, it is needed to remove the judicial officials` opposition, to press legislators in criminal and to prepare grounds to support the legitimacy against general public opinion to maintain the death penalty. Starting with this research, I hope to make progresses in careful and empirical research and analysis on cases of death penalty from the establishment of the government to 1997 that are different from the statistics from now on.

사형제도의 정당성에 대한 비판적 검토

이덕인(Lee, Deok-In) 한국형사정책학회 2011 刑事政策 Vol.23 No.1

Last year, in 2010, some death penalties were executed in the US and in some countries in Asia. However, the overall number of death penalties executed globally had fallen compared to previous year, with nations abolishing death penalty on the rise. Generally, there is increase in international movement for death penalty being abolished. Since the 23rd capital punishment, as the last, executed in Korea in December 1997, we have ceased death penalty executions for the past 14 years. Such record, although we have not proclaimed Moratorium, we were known to have abolished death penalty by international society. However, each time a brutal crime takes place, the public emotion would boil up and presses the government authorities to bring back the death penalty. And time and time again, these pressures led to governments review series of actions. Strictly speaking, therefore, the death penalty in Korea is not completely abolished. In other words, those condemned criminals are merely being held around regional correction facilities, standing by to hear of their final fate, which are depended on pressure from public opinion and government authority's will. Human rights and human dignity can never coexist with death penalty. No matter how brutal a crime, considering it is the present social state connected with mankind, the government would be neglecting their duty to work on a worn-out belief that death penalty would secure us safe society. Especially so when there is no treatment or safeguard considered. Also, through constitutional evaluation, Korea has been insisting on impossibility to abolish death penalty, while maintaining death penalty system. However, both the Supreme Court and Constitutional Court demanded the question of whether to maintain or abolish death penalty should be dealt legislatively. It only implies that it is beyond human being's ability to decide on justification for putting a limitation on a right to life, even for a condemned criminal. Therefore, the burden of proof for justification for death penalty is obviously something the nation has to bear. And if it is true that such proof is not possible or inadequate, death penalty should permanently be removed from the nation's list of punishments.

사형제도에 대한 연구

이덕인(Lee, Deok-In) 한국형사정책학회 2010 刑事政策 Vol.22 No.1

Today, more than 60 years after the Supreme Court of Japan first ruled that the death penalty itself and the execution means were constitutional, we need to think whether Japan is the society in the future when the precedent was planning to abolish the death penalty, or not. In this precedent, the Supreme Court said that life was high and noble and one person's life was heavier than the earth. Also, as it decided that the death penalty was not brutal judging from the circumstances of the day of the court's decision, it clarified that the death penalty must be seen as 'an brutal punishment' in the case that the execution means etc were brutal from humanitarian point of view judging from the time and circumstances. And, it said that a legislation for brutal punishments was against the mind of Article 36 of the Japanese Constitution. By the way, there is the 'brutality' of the crime by the defendant, in the standards for permitting the death penalty. Namely, the brutality of a criminal and national punishments that are planning to punish him are doubly interlinked in the death penalty. But, because making a judgement about the brutality of the crime by the defendant is extremely subjective and lacks in objectivity and the standard gap among each case is too big, it can be said as the examination factor of an offense which is empty of justice. Also, the brutality of national punishments is not absolute and value-free but a concept which is changed by the time and circumstances. So, I think that making a judgement about indetermination by indetermination is inconsequent and can't be the basis of the existence of the death penalty. Just like our society, the execution of the death penalty in Japan has the principle of secrete practice. Although people who don't directly witness the moment, ending one's days on the gallow, may argue that it is not brutal, condemned criminal on the gallow doesn't die by being throttled but he ends his life in the unimaginably horrible pain with the broken cervical spine. Today, it is a common sense in civilized societies that no execution means of the death penalty could be humanitarian and reduce pain. Basically, half century after the suggestion of the constitutional decision in Japan, today's situations at the time and circumstances widen the subjects and the ranges of the human right and the dignity of human. Even if a condemned criminal, we cannot deny he is a humans except for the fact that he is forced to offset his responsibility about a crime by his death. So, Japan should recollect their proud Heian period that daringly deleted the death penalty in the punishment list, than conceal it at the back of today's distorted fear of a crime and use it as an instrument of ruling for national management.

동북아시아 사형제도의 국제 동향과 미래 예측

이덕인 ( Deok In Lee ) 한국형사정책학회 2012 刑事政策 Vol.24 No.3

As entering modern and contemporary times, northeast countries chose ways different from one another in the process that they established their own national identities and organized ideologies bolstering the identities. However, their epistemological bases of crimes and punishments were as ever connected by asian values. Therefore, the solidarity of asian values on death penalty may boil down eventually to the problem of how to dissolve the set of fixed values. Although this awareness accompanies as many difficulties in leading changes as the depth of history, it is inevitable to cope with the problem by building solidarity power on the basis of co-prosperity of mankind because death penalty ultimately are not a problem of a regional situation applying to a certain country. Specifically, Korea has halted an execution of death penalty for a long time, and furthermore, in order to be commensurate with its expected role in the global society as the country from which UN secretary general is from and as a newly elected non-permanent member of the security council, it should boost its status as a country completely abolishing the death penalty in northeast asia by hurriedly signing the 2nd optional protocol to the international covenant and taking a procedure to ratify it.

북한의 사형제도에 대한 비판적 고찰

이덕인(Lee Deok-In) 동아대학교 법학연구소 2010 東亞法學 Vol.- No.48

If we look at the state of affairs of the Korean Peninsular and North Korean trend, North Korea is losing ground more and more in the international society, and internally this is aggravating the economic conditions and also a setback in succession of power seems inevitable. Therefore, in order to break this deadlock, North Korea is expected to strengthen the solidarity in order to support the system by tightening the more thorough crackdown and controls internally. Also, in this context, by tightening criminal laws and mobilizing politically severe punishments, it will try to maintain the dictatorship packaged by socialism. It was examined that, in functions managed by the criminal law in North Korea, disciplinary and mobilizational character was highlighted than a preventive aspect, and that the mobilization of punishments to a war against crime and violence wasn't for the prevention of crime and violence themselves but was nothing more than a means to protect the party line and policies. I In the recent 2007 revision of the criminal law, it is estimated to clearly reveal this situation and it is difficult to expect democratic criminal proceedings, and it can be identified to expand death penalty articles in order to support the system. Also, North Korea attempts to threaten the North Korean people for general prevention by mobilizing a way for criminal law enforcements, called a public execution, however, as the side effects shown in the process of development of human history in the past are embodied as the same pictures also in the present society of North Korea in the 21st century, the effects of the public execution don't appear to the direction intented by the regime of North Korea. Recently, our society has raised objections to armed provocations of North Korea and has been stepping up its efforts to impose appropriate sanctions. But it can be said to suppress the formal attitude about the human right abuse and the public execution that North Korea has been applying to its citizens internally. On the base of this fact, the approach according to the simple economic logic has limitations for true harmonization and unification and thus Republic of Korea will need to take charge of a leading position constantly raising objections to a question of human rights of North Korea and navigating changes in the international society.

전근대 한국사회와 사형제도 -한말과 일제강점기를 중심으로-

이덕인 ( Deok In Lee ) 한국형사정책학회 2013 刑事政策 Vol.25 No.2

This study starts with a question over limited political implication being monopolized as strengthening means of feudal monarchy system or colonial rule that is an aspect of punitive features of death penalty system. Therefore, through an analysis of death penalty system during the era of Gapo reform, Korean Empire and Japanese colonial rule that are corresponding to premodern times of our country, a phenomenon of limited political implication was observed in a critical perspective. Weight of political implication that exceeds required objective to be always pursued by the punishment has been imposed on death penalty among punishments. Political implication of death penalty may be briefly expressed as retributive legal conviction, expectation of threatening effect and complete isolation of the offender. However, aside from supporting whatever perspective, its start should have been combined with criminal case itself at that time but death penalty system in premodern times of our society had put its weight on limited political context as a means of strengthening feudal royal authority or colonial rule rather than on situation of public order or criminal severity at that time. Therefore, essence of death penalty system is required to be critically and realistically introspected in terms of the fact that death penalty of This study starts with a question over limited political implication being monopolized as strengthening means of feudal monarchy system or colonial rule that is an aspect of punitive features of death penalty system. Therefore, through an analysis of death penalty system during the era of Gapo reform, Korean Empire and Japanese colonial rule that are corresponding to premodern times of our country, a phenomenon of limited political implication was observed in a critical perspective. Weight of political implication that exceeds required objective to be always pursued by the punishment has been imposed on death penalty among punishments. Political implication of death penalty may be briefly expressed as retributive legal conviction, expectation of threatening effect and complete isolation of the offender. However, aside from supporting whatever perspective, its start should have been combined with criminal case itself at that time but death penalty system in premodern times of our society had put its weight on limited political context as a means of strengthening feudal royal authority or colonial rule rather than on situation of public order or criminal severity at that time. Therefore, essence of death penalty system is required to be critically and realistically introspected in terms of the fact that death penalty of This study starts with a question over limited political implication being monopolized as strengthening means of feudal monarchy system or colonial rule that is an aspect of punitive features of death penalty system. Therefore, through an analysis of death penalty system during the era of Gapo reform, Korean Empire and Japanese colonial rule that are corresponding to premodern times of our country, a phenomenon of limited political implication was observed in a critical perspective. Weight of political implication that exceeds required objective to be always pursued by the punishment has been imposed on death penalty among punishments. Political implication of death penalty may be briefly expressed as retributive legal conviction, expectation of threatening effect and complete isolation of the offender. However, aside from supporting whatever perspective, its start should have been combined with criminal case itself at that time but death penalty system in premodern times of our society had put its weight on limited political context as a means of strengthening feudal royal authority or colonial rule rather than on situation of public order or criminal severity at that time. Therefore, essence of death penalty system is required to be critically and realistically introspected in terms of the fact that death penalty of premodern times was not a means of recovering justice but just activating authoritative power.

국민 참여 형사재판제도의 정착을 위한 제언

이덕인 ( Deok In Lee ) 한국비교형사법학회 2012 비교형사법연구 Vol.14 No.1

Even to look at the case of United States which can be called the country of Jury trial system, it has undergone a long historical course until the civil participation in the judicial process came to take root in the society. Thus, even if its success is not satisfactory, it`s not only not desirable to hastily jump to conclusions about the existence or removal of the system only by five years of experience and results over a short time of 5 years, but also it turns the intent and purpose to overcome the distrust and establish the true meaning of the judicial sovereignty of the people into inaction. Japan`s failed trial by jury gives us the lesson. We can find the real cause of their failure not in the formal aspect on the surface that the effect of verdict was advisory, but rather in the substantial aspect that in fact the system itself was used for political purposes and, moreover, the failure was largely due to the phenomenon of three legal parties` avoiding, whether actively or passively, and in the fact that the system had been neglected out side of the interests of the people who are the real participating subject in it. In order not to trace on such Japan`s step, sufficient social discussions and consensus on the form of civil participating trial should be made until the point of finishing the first step of plan. In addition, the attitude to understand the legal nature of institutions and norms as the temporary or transitional one with limited time also plays the role of making the survival of the system too opaque. But it should be kept in mind that there doesn`t exist the stated provision of the legal basis of the system as the temporary law, and the way of reasoning on that basis is only the opinion suggested by ``juridical reformation commission``, and that the existence of the system depends the public consciousness and awareness of public opinion, the three legal parties` consensus, and the responsibility of criminal legislator entrusted to arrange them normatively.

위계에 의한 아동·청소년 간음죄에서의 ‘위계’의 의미

이덕인(Lee Deok In) 한국형사법학회 2016 刑事法硏究 Vol.28 No.4

형법과 아동·청소년의 성보호에 관한 법률에 규정된 위계에 의한 미성년자간음죄와 위계에 의한 아동·청소년간음죄는 동일한 불법을 예정하고 있다. 특히 위계에 의한 간음죄에 있어서는 상대방인 아동·청소년을 포함한 미성년에게 착오를 일으키거나 부지를 이용하여 성교행위에 이르게 되는 것이라는 점에서 이와 관련된 기망 또는 유혹행위도 포함하도록 넓게 해석할 필요가 있다. 아울러 성범죄의 특수성, 나아가 아동·청소년대상 성범죄의 특수성을 고려할 때, 이 사안과 같은 유형범죄의 위계개념에 그동안 법원이 공무집행방해죄, 업무방해죄 등 여타의 범죄유형에서 확립한 위계개념을 차용하는 것은 물론이고 사리판단이라고 하는 위계의 소극적 요건을 내세우는 것은 바람직한 태도가 아니다. 대법원은 기존의 판례를 통하여 형법 제302조의 위계에 의한 미성년자간음죄에 있어서 위계를 제한적으로 해석하여 간음행위 자체에 대한 오인, 착각, 부지만을 위계에 해당한다고 판시한 바 있다. 이에 따라 동일한 범죄구성요건으로 평가되는 청소년성보호법 제7조 제5항에서의 위계에 의한 아동·청소년 간음죄에 대해서도 동일한 맥락에서 위계개념을 파악하려 하고 있다. 따라서 위계의 의미 내지 범위를 대법원의 이와 같이 제한적으로 해석할 경우, 대상판결은 형사처벌에서 제외될 수밖에 없을 것이다. 그러나 위계에 의한 아동·청소년간음행위에 대한 처벌의 필요성과 정당성에 입각하여 기존의 위계개념은 성행위가 이루어진다는 사실 자체를 인식하지 못하도록하는 기망은 물론이고 성행위를 한다고 하는 인식은 있지만 성행위를 하겠다는 의사결정에 본질적인 영향을 미치는 행위자의 기망도 포함되는 방향으로 확대 해석되어야 한다. 13세 이상의 청소년은 성인과 동일한 정도의 성적 자기결정의 주체가 되지 못할 뿐 아니라 부분적으로 성적 자기결정권을 인정하더라도 그에 근거한 간음에의 승낙에는 일정한 제한이 따른다. 이들에 대한 성보호는 아동·청소년의 성보호에 관한 법률이 지향하고 있는 포기되어서는 안 될 국가의 후견적 책무 가운데 하나라고 할 것이다. Adultery on minors, stipulated in criminal code and the Act on the Protection of Children and Juveniles from Sexual Abuse, by a deceptive scheme and child and juvenile adultery by a deceptive scheme are both specified as illegal. Especially, given that adultery crime by a deceptive scheme of adults is committed by making minorities including child and juvenile put his or her foot in his or her mouth or by using ignorance of minorities to have an intercourse with them, juvenile and child adultery need to be understood with a wider perspective so that the range of juvenile and child adultery crime include any kind of fraud or enticement in the purpose of committing juvenile adultery. Moreover, when considering specialty of sex offense or adultery on child and minors, it is not desirable that court borrows the exact concept of deceptive scheme established from other types of crime such as obstruction of justice and obstruction of business to apply to the concept of deceptive scheme of crimes similar with child and minor adultery and formulates a negative requirement, called interpreting facts, of deceptive scheme. Supreme court interpreted sexual intercourse against minors by deceptive scheme addressed in Articles 302 of Criminal Law on a limited basis through recent court decisions and ruled that only misconception, mistake, and ignorance about adultery itself are applicable to deceptive schema. Accordingly, the concept of deceptive scheme tends to be understood in the same vein with child and juvenile adultery by deceptive scheme, addressed in the fourth clause of Article 7 of Child and Juvenile Sex Protection Act, regarded as a same criminal composition requirement. However, if the concept or application of deceptive schema is interpreted in a limited basis just like the supreme court did, case review will have no option but to be excluded from prosecution. Based on necessity and appropriateness of punishment for child and juvenile adultery, the concept of deceptive scheme needs to be broaden by including not only fraud done not to make victims recognize he or she is having a sexual intercourse but also fraud by an abuser fundamentally influencing decision making for having an intercourse even the victim is perceiving he or she is having an intercourse. Over 13 years old children or juveniles cannot be a subject for self-determination and furthermore, even they partially admit self-determination for sexual relation, there is still a changeless limitation on consent for adultery. This is one of government’s responsibilities which the government are not supposed to give up and the law for protecting sexual rights of juveniles has to focus on.

성매매알선 등 행위의 처벌에 관한 법률 제21조 제1항의 위헌논란과 쟁점

이덕인(Lee, Deok-In) 한국형사법학회 2015 刑事法硏究 Vol.27 No.3

오늘날 인간존엄은 너무나 당연하고 기층적인 가치라서 당위적인 것으로 이해되고 있으나 그 바탕에는 소외받은 자들에게 가해진 인권의 말살과 침해에 대하여 간난하게 전개된 투쟁의 역사가 선재되어 있다. 성매매와 관련한 영역에 있어서도 이 러한 문제를 고려해야 하는데, 특히 성인 상호간에 이루어지는 자발적인 성매매는 도덕적 영역에서 해결해야 할 문제임에도 불구하고 국가가 과도하게 형벌로 대응하려 하고 있어서 다수자의 가치를 인간존엄이라는 표현으로 강요하는 것이 되어 소수 자인 성매매여성들의 인간다운 삶을 배려하지 않는 결과를 빚고 있는 것이다. 이 연구를 통하여 자발적인 형태의 성매매에 대한 헌법재판의 연혁을 시작으로 그 불법성의 정도와 위헌논란의 쟁점사실들을 살펴보았다. 즉, 이러한 행위를 형벌이 감당해야 할 성질의 불법한 것으로 오해하고 있는 사정 아래 성매매처벌법의 입법목적과 정당성에도 상당한 의문이 나타나고 합헌론과 위헌론이 교차하는 가운데 그 처벌을 통한 수단의 적절성과 침해의 최소성에 있어서도 일정한 논란이 있음을 확인할 수 있었다. 그러나 더욱 중요한 사실은 이와 같은 사회적 일탈행위를 처벌하 는 근거와 해당행위의 법익 침해 여부, 건전한 성풍속의 허구성 및 형법의 보호대상과의 관계, 그리고 형사절차적인 측면에서 나타나는 모순점 등은 형벌적인 대응의 한계를 여실히 드러내고 있다는 것을 파악할 수 있었다. 따라서 이러한 전제사실들 을 염두에 두고 자발적 성매매 처벌규정에 대한 헌법적합성 판단에 있어서는 다수자의 가치에 이끌려 소수자의 인간존엄이 소외되거나 침해되지 않도록 현명한 결단이 내려져야 할 것이다. Deliberate form of exploitative prostitution exists in our society. However, considering that prostitution overcame a critical level of annihilating human dignity as in the past by stipulating the third-party intervening in prostitution as crime and protecting women who have engaged in prostitution as victims, positive evaluation on contributions of anti-prostitution act should not be ignored. However, we cannot agree that situations of voluntary prostitution which is at the center of controversy these days improved after the law enforcement. Because the law cannot exert a preventive function related to pushing the crime of prostitution, but only signifies intervention of excessive punishment for ethical problems. Specially, selective punishments are being conducted in reality, and being unable to ascertain who the victims are and contents of the damage disapprove the needlessness of the legitimacy or necessity of punishments. Therefore, prostitution without exploitation or coercion that did not invade benefit and protection of the law of others is nothing but an immoral act in modern society where pluralistic values are respected. Regulating the parties involved in voluntary prostitution by punishment does not apply to normative legitimacy and cannot verify effectiveness of the punishment. To conclude, punishment for voluntary prostitution between adults is clearly unconstitutional as it invades sexual assertiveness and self-determination stated in our constitution of choosing one's own destiny by own free will without outside intervention. Furthermore, it would be unavoidable for only punishing people who got involved in prostitution with an unspecified person getting accused of breaching the constitution under the law guaranteed by our constitution.