국민참여재판제도의 문제점과 개선방안

점승헌 원광대학 법학연구회 2014 法學硏究 Vol.30 No.1

약물(마약류) 등의 남용에 따른 폐해와 그 대책

점승헌,송광섭 원광대학교 법학연구소 2015 의생명과학과 법 Vol.13 No.-

A drug can be defined as a substance other than food which may affect the constitution or function of a living thing through its chemical properties. In this sense, it may be possible to place organic solvents like bond, gas or thinner and narcotics like marijuana, methamphetamine, cocaine or heroine under the category of drugs. These drugs are characteristic of having positive medicinal as well as side effects upon human being including but not limited to excitement, hallucinatory image, auditory hallucination, relaxation, sleeping, anorexia, nerve stability, schizophrenia, anaesthesia, brain damage, narcissism, etc. Abuse of drugs, however, would result in direct and indirect impact upon the society, family and industry as a whole by ruining of families, unemployment, loss of manpower, and catastrophic damage of physical and mental health of all people. Strong cling to drugs could also cause devastation of personality by abandoning relationship with family members and friends and even jobs, hobbies and culture and would eventually make addicts unsociable. Furthermore, abuse of drugs could be a cause for more serious phenomenon of social pathology such as drastic increase of inhuman violent crimes, crimes without specific motives, frequent burglary and theft to raise the money to buy drugs with. In contrast with the global trend to enforce the regulations for drug-related crimes, the Korean judiciary authorities keep on dealing leniently with offenders, especially when they are first timers, by only charging the fine not exceeding 50 million Won. To put use of drugs under control, it seems more effective to install and operate facilities which are dedicated to providing supports for drug addicts to get free from the cycle of crimes and return to the society. In sum, it would be extremely important to study the measures needed to prevent occurrence of drug-related crimes because the issue of addiction can not rely on legal punishments alone. The legal system that imposes heavy penalty upon drug-related crimes may be effective to a certain extent in terms of crime prevention but has limit in itself. It is therefore most imperative to respond in a more active way to prevention of drug-related crimes by introducing the educational programs for drug addiction, by training experts who can treat drug addicts, not to speak of working out preventive measures from the perspective of criminal legislation and socio-cultural aspects as well.

刑事調停制度의 活性化 方案

점승헌 원광대학교 법학연구소 2013 法學硏究 Vol.29 No.1

The victim-offender mediation system refers in principle to the procedure in which a third party who is situated in the neutral position arranges to mediate the directly concerned persons to eventually come to reconciliation and to reflect such results in processing or judgement of a case. In a word, the victim-offender mediation is simply a process of resolving disputes or conflicts resulted from the offense happening between an offender and a victim and of recovering the loss of the damaged. Viewed from the perspective of the judicial system, the victim-offender mediation could be seen as a form of citizen participation in that the neutral third party, instead of the criminal justice agency, plays a key role in mediation and the mediator cooperates with the criminal justice agency to a certain extent while keeping a good distance from it, at least when resolving conflicts. It may be said, however, that the victim-offender mediation system is very significant since both offender and victim take initiative in mediation to solve the case jointly, which is totally different from the process of handling legal cases under the existing criminal justice system. The victim-offender mediation system in Korea is applauded as having raised capabilities of the investigating and judicial authorities by reducing their burden of having to deal with matters of private autonomy, encouraging to solve problems autonomously, letting judicial officers by thus concentrate on investigating into important incidents, prompting victims to recover from the damage rapidly, ridding offenders of unnecessary restriction or threatening of such by the investigating authorities, defending as a consequence the human rights of offenders, helping them to reunite with the community or society they belonged to in the past, preventing them from repeating offenses, etc. In parallel with widening awareness of positive effects and usefulness of the victim-offender mediation system among the people in this country, responses to the system are expected to become more and more intensified in the days to come. To vitalize and refine the victim-offender mediation system more exquisitely, it seems essential for the prosecutors standing in front line, on the one hand, to drastically increase referral of incidents to settlement by victim-offender mediation and, on the other hand, for the heads of legal institutions, prosecutors in charge and staff members of prosecution to show more active concern and cooperation to increase the number of criminal mediation, minimize the ratio of failure to call for mediation and ward off difference in the number of victim-offender mediations among each prosecutor's office. Moreover, it is also deemed necessary to diversify and specialize election of members for mediation, increase their numbers, organize seminars or workshops to train them and to develop and share their techniques to improve successful settlement by mediation and to give publicity of exemplary cases, in addition to continued efforts to improve working conditions of those engaged in mediation.

안락사와 존엄사에 대한 입법론적 고찰

점승헌 원광대학교 법학연구소 2013 의생명과학과 법 Vol.10 No.-

The criminal law has maintained its firm stand against withdrawal of meaningless life-sustaining care from the view of so-called "the principle of absolute protection of human life". There have on the one hand been angles arguing that such perspective of the criminal law does not coincide with the reality but does only add extra burden on the part of patients' families and even medical staff as well, worsening their legal stability and possible anticipation in their living. On the other hand, there have been positions claiming that it would be too early to introduce withdrawal of meaningless life-sustaining care like shock therapy in theoretic as well as real terms. Lots of debates have already been well under way about the death with dignity along with the issue of euthanasia in Korea but have not met any positive approaches toward its solution. In this midst, the Supreme Court of Korea provided recently a criterion for death with dignity on the occasion of its first decree allowing such death. This measure is widely accepted as a representative example of 'judicial activism' with which the court ventured to stop gap between incomplete legislation and real situation by means of positive interpretation of laws in consideration of social pressure to see the death with dignity allowed whereas the National Assembly and the Administration have been overtly conscious of the public opinion. The euthanasia is various legal issue raises some profound questions regarding life and death, process of guiding a person who has entered into the steps of death to a natural death by cases of medical treatment which has been prolonging such person. It is wise to move toward respecting patients personal choice and to take policy measures as soon as possible, the present might be the right moment to make legislation about euthanasia for the sake of human dignity. This controversy has been taboo for too long, legislation should be worked out through a broad collection of public opinion and references to successful foreign regulation and practices need to be continued in this context, that presumptive consent will be the main theory in the case of case life-prolong treatments.

의료과오의 형사적 책임 : 의사의 주의의무를 中心으로

점승헌 원광대학교 법학연구소 2008 圓光法學 Vol.24 No.2

Medical care is considered as one of the most important in the field in the natural science. In modern society, medical science achieved great advance due to the astonishing development of natural science. On the other hand, we face more danger in medical care, because doctors should adopt more technical surgery medicine with side effect and complicated instrument. When medical accident arise, doctor can be charged civil responsibility or criminal responsibility. Medical care is justified in criminal law as professional activity. Medical malpractice is defied as the neglect of duty in the process of medical care. Ahead, deals with criminal negligence in general negligence in criminal law is failure to take care or precautions to prevent the crime. It studies the theorical development in negligence. And the essence of negligence is in the carelessness not in the ignorance of the fact. And we analyze care at large to foresee the crime and to prevent it. We found the basis of care in the law and regulation itself and practice. The next, deals with medical malpractice, it studies the speciality of medical care; risk, collaboration, discretion and technical skill. Negligence, in particular is defined as the omission to do something which a resonable man guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something that a reasonable and prudent man would not do. The reasonable man becomes the duly careful member of the profession.

組織犯罪의 現況과 對策

점승헌 圓光大學校大學院 1997 論文集 Vol.19 No.-

An organized crime is a crime that is committed by a continuous plotful organization which includes a number of participants from the legal and illegal social area, also is specified by the organization of court rank and the work apportionment. The organized crime is not a new crime happened in modem times, but the word "Organized Crime" has been used from some time ago. Nowadays, the organized crime has become a crime on a large scale and organized. So the damage is caused by it has been increased. Like this, according as the trend of being spread of the area of their activity and social riskiness by the organized crime. I will consider the actual condition of the organized crime and our actuality and try to find a counterplan about the organized crime. The organization of this report is like that the chapter 1 is the institution of a problem as a part of introduction, the chapter 2 is the definition of the organized crime, the chapter 3 is the cause and the special feature and the type of the organized crime, the chapter 4 is the situation of the organized crime in Korea and overseas countries, the chapter 5 is the actual condition of the violence committed by a criminal organization in Korea, the chapter 6 is the ecology of the violence committed by a crimminal organization, the chapter 7 is a counterplan about the organized crime, lastly I will write the conclusion about it in last part.

日本의 現代豫防刑法과 法益保護原則

점승헌 원광대학교 법학연구소 2007 圓光法學 Vol.23 No.1

It is said the existing criminal law should be used prudently and reservedly as final means, because it stipulates the most rigorous sanction among laws. The criminal as such final means is entering new phase in modern complicated society. As positive crime and heavy punishment are recently in progress in Japan, criminal legislation has been frequently used to solve social issues. Namely, new regulations are enacted to activate criminal legislation. With respect to the question of object protected by criminal law, it is said criminal law generally protects legal interest. This is so-called principle of protecting legal interest, which is said to critically function on the use of punishment. As seen above, the reserved principle of protecting legal interest confronts the current si tuat ion of act ivated criminal legislation. However, regulation of criminal punishment enacted by excessive expect at ion of use of puni shment owing to increased soc ial uneasiness is necessary to protect the life of nation. Thus, it does not violate the pr inc iple of protect ing legal interest, but meets the request for protect ing legal interest. The principle of protecting legal interest is not 'there is no crime, unless there IS infringement of legal interest' but 'crime is established if legal interest is infringed.' Thus, it does not restrict the criminal legislation. As a result, some point out that the principle of protecting legal interest virtually has no function to restrict the criminal legislation. This dissertation will discuss the meaning of principle of protecting legal interest in Japan and the present discussion. Namely, it will invest igate the expansion of discussion on the opinion that no regulation of criminal punishment that takes protecting the legal interest of criminal law and excludes the relation of legal interest in infringement of legal interest.

受刑者의 非司法的 權利救濟制度

점승헌 圓光大學校 法學硏究所 2006 法學硏究 Vol.22 No.1

The prisoners' status, decided by the law, and their right, restricted by the law, must be in the minimum extent for the purpose. The measure to help them return to the society should not be admitted in case of the possibilities of infringing their human right without being regulated by the law. But provisions which restrict the freedom of prisoners' use vague concepts or contents, and there is a wide room to infringe the prisoner's human right because of the broad discretionary power given to the authorities such as the warden of the prison. And the right of the prisoners' unfairly disturbed, if there is the purpose of guaranteeing, by the penal authorities their right should be protected to enact the proper system for their relief. For this reason in many countries, the trend to enact the penal law is to make the system for guaranteeing the prisoners' legal relief, and this is realized through the cases and administrative judgements in the penal relation. This study describes the system for relief of the prisoners' right, including the need of the system for relief of the prisoners' right, the review of the system in the non-judicial cases in foreign countries compared with our nation, and the problems and the improvement measures of the system in the present law.

保護觀察制度

점승헌 圓光大學校大學院 1996 論文集 Vol.17 No.-

Today, It has been shown that crime has increased, both quantitatively and qualitatively, and has been turned into brutality, collectivization, intellectualization, mechanization and so on, as scientific civilization and economy have been developed. Therefore, each country endeavors immensely to cope with criminal problems, but that result is beyond our power. Under such phenomenon, the criminal policy in each country including Korea aims to educate, reform and return convicted person to society. Accordingly, in the following text we will deal with significance of probation system, legal quality, propriety of probation system, operation of probation system, improvement plan about that problem point.

환경형법에서의 고의와 과실

점승헌 圓光大學校 法學硏究所 2006 法學硏究 Vol.22 No.2

The modem materialistic civilization has yielded various environmental problems in the process of its highly intense development since the onset of the near-modem times. Provided environmental contamination keeps its pace as now, anticipated catastrophic consequences will surely come true in terms of the wholesome destruction of our ecology, disrupted equilibrium in the composition of air, sharply rising cost of countermeasures against environmental pollution, serious menaces to life and body, etc. Pollution-related crimes, however, have not ceased increasing as businessmen have been too eager to pursue their own interests showing total disregard for such seriousness, by turning a deaf ear to destructing natural environment relentlessly. Pleasant and comfortable living conditions are essential for individual as well as society as a whole to save vital energy, that actively and live a dignified life. This is why it is badly required Koreans enhance their concern for environmental issues by stipulating punishment against basic environment-related crimes in the Criminal Law Act. The purpose of the present study is to review various issues raised in the process of meeting legal requirements for the prevention of environmental crimes that do particularly serious harm to legal rights among others by unmasking and punishing them accordingly and suggest proper measures to tackle them. In fact, it is hard to deal with all sorts of crimes connected with the environment in this short essay since the provisions concerning environment in the Criminal Law Act are extremely wide-ranged. Environmental pollution has become so serious now as to threaten the very survival of human beings. Its dangerous impact on the public safety is even inclined to intensify day by day. Since human existence depends absolutely on the natural environment, deteriorating environment should no more be neglected but immediate measures should be taken to protect it including but not limited to severe punishment against any destructive acts on environment. In spite of government's keen supervision on the illegal discharge of pollutants, environmental crimes continue to increase and natural pollution keeps getting more and more serious, which might primarily be attributed to inconsistent and halfway control of the government and lukewarm punishment by the law-enforcing agencies. Since inconsequent legal provisions also are found to be responsible to the great extent for such consequences, intensive application of the special law governing control of environmental crimes is seriously requested as the law itself was enacted with an aim to intensify the punishment against such acts. In this context, it is demanded to rectify the imperfect provisions of the concerned laws; such as expansion of range of careless offenses, maintenance of provisions to punish would-be criminals ill preparation for denial of one's faults or intention, and extension of application of the special law governing punishment of environmental crimes to violations like noise, vibration, sunshine barrier, subsidence of ground, etc.