소년조사제도의 개선방안에 대한 연구

홍영오(Hong, Young-Oh),황태정(Hwang, Tae-Jeong) 한국형사법무정책연구원 2011 형사정책연구원 연구총서 Vol.- No.-

인터넷상 명예훼손·모욕죄와 피해자의 특정

황태정(Hwang, Tae-Jeong) 한국형사법학회 2009 刑事法硏究 Vol.21 No.3

The crimes against reputation is an act to lower external valuation on ‘person’ according to statutes, common views and precedents, etc to let the third party meeting with expression act not to know who is an object being given valuation lowering act. As ‘Name in full’ represents a man who is subject of honor in real world. so ‘ID’ performs same function on cyberspace. Being different from natural association of meaning with the ones who have ‘name in full’ in real world, ‘ID’ on cyberspace has only meaning of personal identification symbol that identifies the one who exists behind the scenes so that it cannot be thought to be same with a ‘person’ from point of view of natural meaning: Therefore, normative equality of both can be admitted only limitedly. When ID is classified into four types, that is to say, completely unrecognizable type, semi-unrecognizable type, semi-cognizable type and completely cognizable type, completely cognizable type only admits of normative consistency between ID and the one who exists behind the scenes except for exceptional case that the one discloses his or her identity by himself or herself and either an actor in the use of website or the third party acknowledges such a fact. In other words, the ID cannot be thought to be ‘person’ who is an object of crimes against reputation from point of view of intentional acts of an actor at remaining types, and it cannot be thought to make a specification of the victim from point of view of the third party's recognizable possibility. In such a case, therefore, either defamation or insult on ID is difficult to admit of it. When lowering of valuation on ID in either defamation or insult is punished from point of view of needs of realistic penalties despite such a theoretical fault, such aoreticis al faulbe thought to be proper from point of view of the Principle of “nullum crimen, nulla poena sine lege”. If such a punishment is thought to be required, the act shall be carefully reviewed to legislate it based on the principles of appropriateness.

전과기록의 이용,관리와 형실효법의 문제점

황태정 ( Tae Jeong Hwang ) 한국형사정책학회 2006 刑事政策 Vol.18 No.2

The Act on the Lapse of Criminal Sentences had no regulation on how to terminate a case when materials of investigation cards were not made out. Even before registering materials of investigation cards in E-CRIS (Electronic Criminal Record Identification System), contents of the materials of investigation cards included important personal information and investigation of a suspect to regulate legal basis management at the stage of preparation, deletion and repeal, etc. The law in force had a basis of the existence of the materials of investigation cards made by special judicial police official by the Act on the Lapse of Criminal Sentences and its Enforcement Decree, and it had no legal basis of concrete contents. Therefore, the laws and regulations on preparation of the materials of investigation cards of special judicial police official should be newly enacted or applications of preparation of existing materials of investigation cards were demanded to specify special judicial police management. Previous criminal records were illegally inquired mainly because the Act on the Lapse of Criminal Sentences and other laws and regulations regulated references and reply of previous criminal records here and there. Therefore, laws and regulations on references and reply of previous criminal records were required to regulate types, scope and limitation of previous criminal records by single law, that is to say, the Act on the Lapse of Criminal Sentences. Considering basic spirit of the Act on the Lapse of Criminal Sentences, the law had better include positive list that regulated references and reply of previous criminal records within laws and regulations. As explained before, regulations of references and reply of previous criminal records were required to specify them by the Act on the Lapse of Criminal Sentences: When enactment was made, the Enforcement Decree of the law was required to specify inquiry and scope of reply, etc clearly. Legislation of inquiry as well as division of the scope of inquiry could prevent illegal references and reply indirectly, while reinforced punishment of the one who did illegal references and reply of previous criminal records could do directly. To protect personal information and privacy effectively, legal punishment and sentence were demanded to reinforce against illegal references and reply. The punishment with a fine that mostly consisted of minor crimes was required to exclude previous criminal records below than a certain money value from the materials of criminal records and to include them in the materials of criminal records that could not be included in previous criminal records. In the case, the judicial police officer was permitted not to make out materials of investigation cards to meet legislative purposes of the Act on the Lapse of Criminal Sentences for the ones who were given summary judgment. When legal period elapsed, the Act on the Lapse of Criminal Sentences could delete materials of investigation records. And, the law limited scope of the deletion so much not to meet legislative purposes. When criminal investigation records could be deleted immediately, scope of legal punishment should be reduced to expand scope of the deletion and to remove criminal investigation records of minor crimes as soon as possible and to alleviate psychological burden of a suspect and meet legislative purposes of the law.

착오에 의한 승낙과 긴급상황 착오에서의 유효성

황태정(Hwang, Tae-Jeong) 한국형사법학회 2010 刑事法硏究 Vol.22 No.1

Personal legal interest shall not be principally punished when victim consents to infringement upon his own legal interest. The consent that has been made by either violence and threat or deception and misunderstanding may have problem of legal effect because it has not been made based on truly free will of legal interest entity. The paper has discussed legal effect of the consent made by misunderstanding. Theories are divided into three: theory of serious misunderstanding(theory of subjective real intention), theory of misunderstanding of the motives and theory of legal interest related misunderstanding, depending upon situation that an misunderstanding has been made. The consent based on misunderstanding of ‘legal interest itself’ of legal interest entity shall be null and void, and the consent made by misunderstanding of ‘incidental circumstances such as motives and purposes’ shall be effective according to theory of legal interest related misunderstanding that is thought to be the most appropriate. However, theory of legal interest related misunderstanding may be difficult to consistently explain specific case such as ‘misunderstanding of emergent situation’. Some of scholars admit of an exception that theory of legal interest related misunderstanding cannot solve all of the cases: However, different theory construction of each case that can maintain theoretical structure of theory of legal interest related misunderstanding is thought to be desirable. So called ‘the case of killing of wild beasts’ has shown that objective value of wild beasts can be lowered under emergent situation to decrease needs of legal interest protection. Therefore, a breeder who has consented killing of wild beasts by deceptive behavior may have misunderstanding of legal interest relations to nullify consent. So called ‘the case of corneal transplant’, however, does not deteriorate legal interest values even at existence of emergent situation to let legal interest entity have freedom of disposal of legal interest so that it may be different from the case of killing of wild beasts. The resolution may have many opinions: But the opinion nullifying consent that an error of ‘general value system’ is regarded to be that of legal interest relations is thought to be the most appropriate considering maintenance of theory of legal interest related misunderstanding.

전자기록 부정행사의 형사책임

황태정(Hwang Tae-Jeong) 한국형사법학회 2007 刑事法硏究 Vol.19 No.4

  A few years ago, The Supreme Court of Korea gave a decision upon the use of KT card(deferred payment telephone card issued by Korea Telecom), denying unlawful use of facilities for convenience(§348-2) and admitting unlawful uttering of private document(§236). I think that the argument of the decision is not appropriate in two points of view.<BR>  First of all, It is not rational to admit unlawful uttering of private document. When we use KT card in public telephone, only magnetic stripe of the card is uttered. Criminal Act of Korea has a provisions to punish falsification or alteration of electromagnetic records(§227-2, §232-2), uttering falsified or altered electromagnetic records(§229, §234) and unlawful uttering of official or private document(§230, §236). But the Act does not have a provision to punish unlawful uttering of electromagnetic records.<BR>  Secondly, unlawful uttering of KT card should be valued not only from social point of view but individual point of view. It is very important value to protect individual property as well as to protect social reliance on document. In this case, the accused uttered other person"s KT card without paying price, acquired benefits to property and caused loss to telecomunication service provider or the owner of KT card. For that reason, I think it is needed to admit unlawful use of facilities for convenience in this case.

일본의 성범죄 재범방지정책 -우리 법제도에의 시사점-

황태정 ( Tae Jeong Hwang ) 연세대학교 법학연구원 2008 法學硏究 Vol.18 No.3

The tendency of sexual crimes in recent years show that a long term detention to the sexual offenders was not effective in preventing recidivism. In considering this situation, it is needed to adopt proper measures like as not only aggravating penalty based on retributive justice but medical treatment based on medical justice. In connection with the problem, there are some remarkable change about the recidivism prevention policy toward sexual crimes in Japan. In 2006, Japanese government set a task force team under Ministry of Justice, undertook development of treatment program for sexual offenders and restructured treatment program related law. And this treatment program has been executed from April 2007. I think the result of the research and actual condition of operation of the treatment program in Japan could provide a guide to korean policy toward recidivism of sexual crimes. In this paper, I would like to take a closer look at the treatment program and related law for the prevention of recidivism of sexual crimes in Japan and attempt to provide some reform measures for recidivism prevention policy and related law in Korea.

재난피해자 보호·지원 법제 개선방안

황태정(HWANG, Tae-Jeong) 한국피해자학회 2021 被害者學硏究 Vol.29 No.2

국가의 국민보호라는 이념적 가치를 담보하기 위해서는 국민의 생명·신체·재산에 대한다양한 형태의 위협을 예방하고, 이미 발생한 피해를 복구하기 위한 사전적·사후적 조치의법제화가 필요하다. 우리 헌법은 범죄피해자의 구조청구권 등 범죄피해를 전제로 한 규정과함께, 국민의 인간다운 생활을 할 권리 및 국가의 재해예방과 국민보호를 위한 노력의무를 규정함으로써 재난·재해피해로부터의 국민보호 또한 국가의 책무 중 하나로 규정하고 있다. 재난으로 인한 피해는 사회적·개인적 차원에서 큰 영향을 미치게 되는데, 재난에 대한기존의 대응체계는 주로 재난 현장의 인명구조, 파괴된 시설의 복구 등 외형적 회복을 중심으로 꾸려져 왔고, 진정한 의미에서 피해자가 재난 이전의 상태로 돌아가는 이른바 ‘회복적재난대응’을 기대하기는 어려운 것이 현실이었다. 그러나 재난의 성공적 극복을 위해서는 사회적·물질적 인프라의 회복 못지않게 재난피해자의 개인적·정신적 회복이 중요하다고 할것이며, 재난피해자의 회복은 물질적·경제적 지원을 넘어 피해자의 정서적 회복을 추구하는 방향으로 이루어져야 할 것이다. 이러한 문제의식에서 이 연구는 재난의 극복 과정에서 ‘피해자중심적 재난대응’의 이념이입법적으로 어떻게 구현되어야 하는지를 연구의 목적으로 설정하고, 이를 위해 현행법상 다양한 재난 관련 입법을 재난피해지원의 관점에서 분석·검토한 후, 이를 토대로 향후 재난피해지원 관련 법률의 입법적 개선방안을 제시하고자 하였다. In order to ensure the ideological value of protecting the nation s people, it is necessary to legislate various measures to prevent threats to people s life, body, and property and to restore damage that has already occurred. In addition to the crime victims’ right to claim damages to the country, the Korean Constitution stipulates the right of the people to live humanly and the duty of the nation to prevent disasters and protect the people. The damage caused by disasters will have a significant social and personal impact. However, the existing disaster response system has been centered mainly on the recovery of lives on the site of disaster and the restoration of destroyed areas and facilities, and it was difficult to expect so-called ‘restorative disaster response’ in a true sense. In order to overcome disasters successfully, the personal and mental recovery of the disaster victims is as important as the recovery of the social and material infrastructure. Therefore, the recovery of the disaster victims should go beyond the material support and pursue the emotional recovery of the victims. In this sense of problem, the study aimed at how the ideology of ‘victim-centered disaster response’ should be implemented legislatively. To this end, this study analyzed and reviewed various disaster-related legislation under the current law from the perspective of disaster damage support and tried to present legislative improvements to future disaster damage support laws.

즉결심판제도의 문제점과 개선방향

황태정(Hwang Tae-Jeong) 한국형사법무정책연구원 2003 형사정책연구원 연구총서 Vol.- No.-

미국 낙태제한입법의 흐름: 심장박동법과 향후 전망

황태정(Hwang, Tae-Jeong) 한국형사법무정책연구원 2021 형사정책연구 Vol.128 No.-

개인정보보호법제 체계의 입법적 개선방향

황태정(Hwang Tae-Jeong) 한국형사법무정책연구원 2005 형사정책연구원 연구총서 Vol.- No.-