[논문] 헌법재판소 판례로 본 행형과 수용자의 인권-행형에 대한 헌법적 이해-

이호중(Lee Ho-Joong) 한국형사법학회 2004 刑事法硏究 Vol.22 No.-

Although a few outstanding decisions of The Constitutional Court of Korea(KCC) have steered the penological reform, still remains much vagueness in the arguments on constitutionality of prison regulations in the penological cases. This article critically analyzes the constitutional discourses of KCC about penological aims and the restraints of prisoners' constitutional rights. In the constitutional context, the prison regulations which impinge on inmates' constitutional rights should be reasonably related to the legitimate penological aims and should be no greater than is necessary to the protection of penological aims. However, The KCC has failed to show what the legitimate penological aims are. And this vagueness has made the arguments of the KCC less elaborate in the test of “reasonable connection"". This article tries to clarify the relationship between the substantial penological interests of rehabilitation, security, social defense. From constitutional “Social-State"" principle, it can be construed that the rehabilitation should attain superiority over the other penological interests. And rehabilitation should be understood as a process which furnishes the prisoners with an opportunity for life without criminal conducts. It never means that the government can force a person to be a ‘good citizen'. In the test of constitutionality of the restraints of prisoners' rights it should be considered that the protections of the human rights of prisoners in general help the governmental penological aim ‘rehabilitation'. So the test of the KCC must include the following relevant factors : (1) whether and the extent to which the issued constitutional right can help the prisoners' rehabilitation, and whether and the extent to which the restraints of the constitutional rights can protect the other penological interests, (2) whether there are alternative means of exercising the asserted constitutional rights.

서비스 기반 안드로이드 어플리케이션의 설계 및 구현 프로세스

이호중,라현정,금창섭,김수동,Lee, Ho-Joong,La, Hyun-Jung,Keum, Chang-Sup,Kim, Soo-Dong 한국정보처리학회 2011 정보처리학회논문지D Vol.18 No.4

인터넷의 빠른 보급과 함께 발전한 모바일 디바이스는 유연한 이동성과 함께 언제 어디서나 네트워크에 연결되는 특성을 가지고 있고, 어플리케이션들을 실행할 수 있다. 그러나, 모바일 디바이스의 특성인 자원 제약성에 영향을 받기 때문에 복잡한 기능을 하는 어플리케이션을 실행시킬 수가 없다. 그러므로, 일부 기능을 외부에 위치하거나 외부 서비스를 이용하는 접근 방법에 대해 연구가 진행되고 있다. 안드로이드는 대표적인 모바일 플랫폼 중 하나로, 제한된 자원을 가지는 모바일 디바이스 상에서 여러 모바일 어플리케이션들을 실행시킬 수 있도록 설계되었다. 서비스 개념과 안드로이드 플랫폼을 이용한 서비스 기반 안드로이드 어플리케이션은 어플리케이션 기능이 분산되었다는 점과 안드로이드에 특화된 컴포넌트를 포함하고 있다는 점에서 전형적인 소프트웨어와 차이점을 가지고 있다. 그러므로, 일반적으로 널리 적용된 객체지향 분석 및 설계 기법은 서비스 기반의 안드로이드 모바일 어플리케이션 개발에는 그대로 적용되기가 어렵다. 본 논문은 기존 개발 프로세스를 확장하여 서비스 기반 안드로이드 어플리케이션의 개발 프로세스를 제안한다. 우선 서비스 기반 안드로이드 어플리케이션을 개발함에 있어서 발생되는 설계 이슈를 도출한다. 그리고, 각 도출된 이슈를 해결하기 위하여 기존의 객체지향 개발 프로세스를 확장한다. 확장된 프로세스는 이슈를 구체적으로 해결하기 위한 상세 지침과 설계 결과 양식을 포함한다. 마지막으로, 사례연구를 통해 확장된 프로세스의 적용 결과를 보여준다. 본 논문에서 제안된 설계 프로세스는 서비스 기반 안드로이드 어플리케이션 개발을 보다 체계적이고 효과적으로 수행하는데 기본적인 방법론 지침으로 활용될 수 있다. Mobile Devices, which are developed with the fast growing of the Internet, have flexible internet accessibility and can access the network anywere so that they can execute software applications. However, it is very challenging to deploy highly complex applications on mobile devices since they have limited resources. To overcome the limitation, researches on applying a concept of services to mobile applications have been proposed. Android is one of the popular mobile platforms and is designed to effectively execute mobile applications on the mobile devices having limited resources. Since service-based Android applications, which adopt a concept of services and Android platform, invoke remote services and are built with Android-specific components, they are much different from traditional software applications. Consequently, it is not straightforward to apply object-oriented (OO) analysis and design methods to developing service-based Android applications, although they have been frequently applied to developing traditional applications. In this paper, we present a process to develop service-based Android mobile applications, which extends a traditional OO development process. First, we raise design issues to be considered in developing service-based Android applications. Then, to solve the issues, we present detailed guidelines for essential phases of OO-based development process that are customized to service-based Android applications. Finally, to show applicability of the process, we perform a case study. The proposed design process is effectively utilized as a set of guidelines to develop service-based Android applications more systematically and effectively.

성형법 담론에서 섹슈얼리티의 논의지형과 한계

이호중(Lee, Ho-Joong) 한국형사정책학회 2011 刑事政策 Vol.23 No.1

The crime of sexual intercourse under pretence of marriage(Article 304 of Korean Penal Code) was pronounced as ‘unconstitutional’ by Korean Constitutional Court(KCC) on the ground that it criminalized a behavior that does not deserve to criminal sanction but only moral blame. Maybe that decision would have a great influence on the debate about abolition of the crime ‘adultery’ in Korean society. This paper has interest on the issue, ‘how or in which context the discourse of sexuality which is developed in the realm of feminism can be reflected in criminal legal discourse’. The above mentioned decision of KCC is based upon legal liberalism, the characteristic of which is that each man or woman equally has the right of sexual autonomy and free sex. However, "sexuality" is neither natural, nor neutral. It is socially constructed by gender-power in our society. This context of gender-power relation should be sincerely considered in criminal legal discourse. This article argues that the right to sexual autonomy of free sex should be understood as one which is based on the democratic and equal communications. The right to sexual autonomy would be infringed not only by a 'violent' sexual act, but also by a sexual act interpreted as not-violent, but based on the gender-distorted sexuality. And so only the reason of superficial freedom or equality of free sex can not justify the abolition of the crime ‘adultery’.

아동학대에 대한 대응시스템의 문제점과 전문법원제도의 도입방안

이호중(Lee, Ho-Joong) 한국피해자학회 2007 被害者學硏究 Vol.15 No.2

This article reviews the justice system that responds to child abuse and neglect crimes. The most serious problem is that the current system is a fragmented system. It has not been conceptualized as a whole or put into practice by a common set of statutes. Victim protection services are implemented by welfare service agencies; parental rights of the criminal can only be restricted by a decision of civil court; and the criminal is punished through the criminal process by criminal court. Many of the agencies that handle the child abuse cases and victim protection services are working independently, and not designed primarily with child abuse victims in mind. Based on the idea of community justice, the main theme of the author is that the justice system that handle the child abuse cases should function as a complex set of agencies and institutions that include police, prosecutors, civil and criminal court, and child protection agencies. An important goal of the justice system against child maltreatment is to prevent future maltreatment of the children and to ensure the children's safety. To meet this goal, the justice system ought to offer proper services, preventive or remedial, and to facilitate the delivery of needed services. Therefore, this article suggests 1) that the specialized courts that have the exclusive jurisdiction over the child abuse cases should be established, 2) that those courts manage the whole process including child victim protection services and penalties to the criminal, and 3) that the 'child victim protection order' for the integrated protection services should be urgently introduced.

수형자의 선거권 제한의 위헌성

이호중 ( Ho Joong Lee ) 한국비교형사법학회 2009 비교형사법연구 Vol.11 No.1

According to criminal law and election law of Korea, all convicted prisoners are automatically forbidden to vote while in prison or on parole. In 2004, the Constitutional Court of Korea held that this disenfranchisement provision is not unconstitutional. But in 2008 an another convicted prisoner in detention challenged the denial of his right to vote again. The Court`s decision seems to be near at hand. This paper criticizes the current legal policy that absolutely prohibits prisoners from voting until the term of imprisonment is fully served. Such a general, blanket restriction on the right to vote of prisoners has no material effect on the deterrence of crimes. Conversely, enfranchisement can be very helpful to the rehabilitation policy, because voting in prison encourages prisoners to behave responsibly and appreciate the implications of citizenship. In respect to the compatibility with Constitution, it could be considered as a legitimate aim that the ban on voting right of prisoners contributes to keep the public confidence to the national elections. However, this paper argues that the absolute ban as a measure must be seen as disproportionate. Firstly, such a blanket restriction applies automatically to a wide range of offenders, from relatively minor offences to offences of the utmost gravity. Secondly, while there is severe doubt as to the efficacy to achieving such an aim through a bar on voting, the right to vote infringed by this policy must be a vitally important constitutional right in democratic society. Therefore the conclusion of this study is that the provision which allows a blanket ban on prisoners` right to vote must be declared as unconstitutional.

소비자 운동으로서 집단적 항의전화걸기와 위력에 의한 업무방해죄

이호중(Lee, Ho-Joong) 한국형사법학회 2011 刑事法硏究 Vol.23 No.4

This paper analyzes the lower court’s criminal decision regarding the ‘secondary boycott’ against three major newspapers. In 2008 many netizens as newspaper consumers opened a internet cafe for consumer boycott against Chosun, JoongAng and DongA daily newspapers and they organized the protest-calling movement to the enterprises that carried advertisements in those newspapers. The issue in the court’s decision was whether the associated protest call of many unspecified people is a crime of ‘interference with business’(Article 314 of Korean Criminal Code) or it should be guaranteed as ‘consumer movement’. The court decided that this case could not be protected under the guarantee of consumer boycott, so punishable under Article 314 of Korean Criminal Code. My criticism is as follows. First, the protest calling cannot be estimated as ‘threat of force’ under Article 314, even though the calling happened massively. The protest call against any enterprise should be allowed as ‘comsumer boycott or comsumer movement’. The right of consumer movement which is prescribed in Article 124 of Korean Constitution includes collective or associated boycotts. Second, I criticizes the court’s reasoning of discrimination between the primary and secondary boycotts. The ‘secondary boycott’ should be guaranteed equally as the primary boycott. Third, I suggest that the Article 314 of Korean Criminal Code should not be applied to the consumers’ boycotts without violence, because any boycott or movement without violence should be protected broadly as a constitutional right of consumer movement, whether individual or collective, whether primary or secondary.

일반 : 유엔 강제실종협약의 국내적 이행방안과 형사법적 쟁점

이호중 ( Ho Joong Lee ) 민주주의법학연구회 2007 민주법학 Vol.0 No.35

형사절차와 인권

이호중(Ho-Joong Lee),성윤환(토론자) 한양법학회 2006 漢陽法學 Vol.19 No.-

우리나라의 양형기준에 대한 비판적 분석

이호중(Lee, Ho-Joong) 한국형사법학회 2010 刑事法硏究 Vol.22 No.1

The Korean Sentencing Commission has established sentencing guidelines firstly on 7 crimes including murder, robbery, sexual assault, bribery, perjury etc. in 2009. After great debate The Commission adopted a gradual approach like the United Kingdom's model, not following comprehensive guideline scheme like U.S.A. model. This paper aims to analyse the structure of Korean sentencing guideline system and point out its characteristics and problems. The characteristics of our sentencing guideline scheme are followings : 1) sentencing guidelines are and will be established independently on each crime category, and each crime category is classified into several “types”, 2) the Commission did not accept the methodology of calculating major sentencing factors, but adopted such system that within each crime category sentencing factors are divided into two groups according their importance, the one is 'special sentencing factors', and the other is ‘general sentencing factors’, 3) these two groups of sentencing factors are also divided into ‘aggravating factors’ and ‘mitigating factors’, 4) each type has three sentencing ranges(mitigating range, basic range and aggravated range) and the appropriate range is selected according to comparing the number of special aggravating factors and special mitigating factors, for example, if special aggravating factors outnumber special mitigating factors, then ‘aggravated range’ will be selected, 5) general sentencing factors are considered when the judge sentences specific term within the selected sentencing range. The Korean sentencing guidelines, briefly summarized above, will be expected to reform sentencing problems, such as disparities, leniency. However, this paper points out some problems and deficiencies of our sentencing guidelines both theoretically and practically. Firstly, there has been no serious review regarding the fundamental issue, that is, which purpose we pursue through sentencing guidelines among various purposes of punishment. Secondly, the Commission did noy accept so-called ‘grid model’ which is based upon the calculation of major sentencing factors according to their importance in each crime. As a result, every ‘special sentencing factor’ are regarded as equivalent. Thirdly, the criteria of suspension of imprisonment is very obscure and imprecise, so we have to recognize that the guidelines are not elaborate enough to control the discretion of judges.

미신고집회의 금지와 처벌에 대한 형사법적 고찰

이호중 ( Ho Joong Lee ) 민주주의법학연구회 2011 민주법학 Vol.0 No.46

Das koreanische Versammlungsgesetz statuiert Anmeldepflicht fur den Veranstalter, der eine offentliche Versammlung oder einen Aufzug veranlasst. Die Durchfuhrung der Veranstaltung ohne Anmeldung ist eine Straftat und begrundet polizeiliche Auflosungsmaßnahmen. Nach der herrschenden Lehre und den Entscheidungen des koreanischen Verfassungsgerichts soll die Anmeldung nicht Erlaubnis sein, sondern nur die Kooperationspflicht fur Ermoglichung der Veranstaltungen und Berucksichtigung der relevanten Interessen durch polizeiliche Erwagungen. Aber tatsachlich funktioniert Anmeldungsgebot als Erlaubnis-system, weil die Anmeldung-system mit polizeilicher Verbotsverfugung ohnehin ermoglicht, dass die Polizei einer konkret geplanten oder durchfuhrenden Versammlung durch grobem Ermessen verhindert. Und die Strafbarkeit der Durchfuhrung der Veranstaltung ohne Anmeldung verletzt das Grundrecht der freien Versammlungen. Zum einen, widerspricht die Strafbarkeit der Charakter der Almeldepflicht als Kooperationspflicht. Zweitens, ist es verfassungwidrig, dass das Versammlungsgesetz die Durchfuhrung der Veranstaltung ohne Anmeldung kriminalisiert. Und bloße Nichtanmeldung sollte kein Auflosungsgrund sein. Sie reicht nur dann fur eine Auflosung, wenn sie sich mit einer unmittelbaren Gefahrdung der offentlichen Sicherheit verbindet.