성적 자기결정권의 형법적 의의와 기능

이얼 ( Eol Lee ),김성돈 ( Seong Don Kim ) 단국대학교 법학연구소 2010 법학논총 Vol.34 No.2

This study is intended to analyze the meaning and function of sexual self-determination, and to predict what the sexual self-determination will be meaningful in the criminal justice system. The Constitutional Court defines the sexual self-determination as `the right to determine the sexual act status and the sex partner` with respect to the adultery. As an active meaning, the sexual self-determination can be understood as `the right to have sex freely by sexual moral`. Also, the sexual self-determination includes `the right not to receive an illegal sexual assault(passive meaning)`. The criminal law limits the active meaning`s sexual self-determination, on the other hand, it protects the passive meaning`s sexual self-determination. In particular, it strongly protects the sexual self-determination of persons who don`t have the self-determination ability like the mentally and physically handicapped persons or minors. The following describes the trends of the present criminal justice system that the sexual self-determination is stressed. First, the adultery still exists but it is highly likely to be subject to decriminalization as people say that the law possibly violates the constitution. Second, the Constitutional Court defines that the man and woman`s sexual self-determination must be respected as it judges that the crime of sexual intercourse under pretence of marriage is unconstitutional. Third, wife is highly likely to be recognized as an object of rape by husband. Also, the rape without consent is highly likely to be introduced. Fourth, with respect to the lascivious crimes, the regulation for adults has been relaxed, but the regulation for minors becomes stronger. In the present criminal justice system, it can be confirmed that the criminal law`s role has been reduced when the sexual self-determination is stressed. Such the situation is not limited to the sexual self-determination, and will produce the same result in all areas that the self-determination can be discussed. However, as the result of trusting the self-determination limitlessly, considering the benefit and protection of other laws must not be neglected. That is, the self-determination must be exercised within the limit of not infringing the other person`s determination. Also, there must be the attitude not to neglect the national and social benefits of law as a citizen who lives in the community.

성폭력범죄의 행위유형에 대한 비판적 형법도그마틱

김성돈(Kim, Seong-Don) 성균관대학교 법학연구소 2011 성균관법학 Vol.23 No.2

Criminal law regulates sexual assault by two representative type of crime, which are ‘rape’ and ‘sexual abuse’. Excluding violence and threatening, the type of act that is common in both kind of sexual assault, rape is considered as an adultery and the latter goes under abuse. In this case, adultery is understood as sexual intercourse between male and female. Therefore, if there were no genital interaction, then it must be subsumed as an sexual abuse and it is penalized at a substantially lower sentence. However, it is questionable whether such reaction of present criminal law appropriate to recent conditions of sexual assault. When the Phenomenon of today’s sexual assault is looked at, it can be seen that sexual assault is frequently occurred as anal intercourse and oral intercourse etc. especially on vulnerable victims such as Children and adolescents. This is a completely different scenario than past phenomenons of sexual assault. Therefore, this essay has focused anal intercourse or oral intercourse and have examined following points in order to provide assessment of criminal law. First, the problems of attitude of present criminal law has been looked at. Secondly, issues associated with attempts to include anal intercourse or oral intercourse into criminal law has been scrutinized. Lastly, it has been studied whether it is reasonable to constitutionalize anal intercourse or oral intercourse into system of sexual assault while considering how to classify anal intercourse or oral intercourse into criminal law in order to be realistic and to effectively protect the right of sexual self-determination. These following statements are the concluded solutions. It is necessary to assort type of sexual assault into three categories in order to pursue accuracy and legal stability by maintaining traditional definition of adultery as well as to take violent anal intercourse or oral intercourse into greater consideration than sexual abuse. Secondly, rape should be restricted to adultery caused by violence or threat, akin to present rape. Furthermore, psudo sexual intercourse is to be broken down into two categories of anal intercourse or oral intercourse and the others in order to keep Schuldprinzip bzw. Bestimmtheitgrudsatz. Thirdly, sexual abuse should allow all the other type of acts that do not go under rape or any of the two psudo sexual intercourse categories.

형법총칙 개정안의 형벌제도와 형사정책적 방향

김성돈(Kim, Seong-Don) 성균관대학교 법학연구소 2011 성균관법학 Vol.23 No.3

Die vorliegende Arbeit befasst sich mit der Bewertung des neulich von Regierung angefertigten und in das Parlament eingebrachten Entwurf des Allgemeinen Teils von koreanischem Strafgesetzbuch(2011 Entwurf), insbesondere der Aenderungen von Strafensystem. Aus der kriminalpolitischen Konzeption betrachtet hat 2011 Entwurf zwar geltendes Strafensystem mit verschiedenen Zielsetzungen rationalisiert, doch er unsere Erwartung auf verbessertem Strafrecht nicht wenig enttaeuscht. Im 2011 Entwurf sind sowohl expliziertes Streben nach Verstaerkung des Schuldprinzips als auch die manche Spuren, die die Zurueckdraegung des Strafrechts darstellt, zu finden. Trotzdem sind in ihm uebersehbare Entaeuschungselemente einschliesslich nicht nur Fortbestehung der Todessrafe sondern auch keine Herabsetzung der Obergrenze von Freiheitsstrafe unberuehrt geblieben.

국선변호제도 개선을 위한 선결과제

김성돈(Seong-Don, Kim),정지훈(Ji-Hoon, Jeong) 성균관대학교 법학연구소 2014 성균관법학 Vol.26 No.2

Es gibt kein komplizierteres Thema als das der Verbesserung des Pflichtverteidigungssystems. Dies ist ein ganz alter Problembereich im rechtswissenschaftlichen Fachwelt. Verschiedene Vorschläge wurden gemacht, nachdem zahlreiche Rechtsproblematik analysiert wurde. Es wurde jedoch bislang nicht darüber diskutiert, wozu das Pflichtverteidigungssystem dienen soll. Beim Pflichtverteidigungssytem müssen Beschuldigter und Angeklagter im Vordergrund stehen. Dieses System muss daher so geändert werden, dass sie sich besser zur Wehr setzen können. Denn der Beschuldigte und der Angeklagte sind nicht nur ein Gegenstand des Pflichtverteidigungssystems, sondern ein Subjekt, der den Sinn und Zweck dieses Systems überhaupt darstellt. Zuerst sind der Beschuldigte und der Angeklate als ein im Mittelpunkt stehendes Subjekt anzushen. Unter dieser Bedingung ist dann ein neuer Weg zur Verbesserung des Pflichtverteidigungssystems zu finden. In dieser Hinsicht ist es eine wichtigere Voraussetzung als dessen Reformvorschlag, um zur Gewährleistung des Wahlrechts des Beschuldigten und Angeklagten das Pflichtverteidigungssystem systematisch zu ändern und zur Verteidigung des Beschuldigten und Angeklagten die konkrete und detailierte Problematik des Systems zu analysieren. Es ist, zur Verteidigung des Beschuldigten und Angeklagten die konkrete und detailierte Problematik zu analysieren.

인터넷상의 웹하드 서비스제공자의 형사책임

김성돈(Kim, Seong Don) 성균관대학교 법학연구소 2010 성균관법학 Vol.22 No.2

Recent controversy has been rising over whether or not criminal responsibility should be taken by the online service provider in the case of the service users’ involvement in illegal activity, and if so, what kind of criminal responsibility is to be given. The paper has examined the following standpoints concerning whether or not the service provider can face charge of aiding of offence if obscene contents banned from release according to ‘Act on Promotion of Utilization of Information and Communications Network’(Act on Communications Network) are distributed over online web-hard service. Firstly, in contrast to the case of portal service, digital contents stored in online web-hard service are not open to every person and therefore, it would not be reasonable to ask the same obligation and responsibility that are normally relevant to general online service provider to the web-hard service provider. Secondly, as far as obscene contents banned from release is concerned, it is difficult to find grounds in Act on Communications Network on which service provider is legally obliged to prevent illegal distribution, just as the case of illegal files protected by copyrights law. Thirdly, Since contents protected by copyrights law from illegal distribution contains personal legal rights, the individual possessor of legal rights could demand web-hard service provider to remove or prevent them and as result, there may arise set specific personal legal responsibility about the service provider. Nonetheless, because such as obscene contents prohibited by Act on Communications Network carry contents about societal legal rights, web-hard service provider has no specific personal legal responsibility. Consequently, as long as Act on Communications Network is not revised to reinforce more detailed obligation of the web-hard service provider, it is problematic to acknowledge the provider’s aiding of offence through omission.

회복적 사법형 형사조정제도의 법제화 방안

김성돈(Kim Seong Don) 성균관대학교 법학연구소 2009 성균관법학 Vol.21 No.2

Criminal Mediation is defined as a process in which the victim and offender reach a voluntary agreement through the third person(mediator) about the harm caused by crime and future action-plan. It is regarded internationally as the alternative ways of responding to crime. Criminal Mediation sets its prime goal towards being a measure for communicative "reconciliation" between victim and offender, not a "punishment" of the later. In Korea, Criminal Mediation has been enforced in criminal practice with minor crimes being complained to the prosecutor from 2007, as the target. With Criminal Mediation being incorporated within the reformative draft of the Victim of Crime Protection Act, it is being deliberated in the Parliament as of November 2008. The degree of measure of the legalization of the Criminal Mediation can differ, depending on its goals, appropriate phases of the criminal procedure, individual case's scale, as well as its effect on criminal law. Criminal Mediation can be categorized, according to its purpose, into two main models: "problem-solving oriented" and "restorative justice oriented" The purpose of this paper lies in revealing why the restorative justice oriented model is more fitting for the korean criminal system, and at the same time, searching the specific plans for the successful adoption of the system. To reach this purpose, the argument was developed in order of the followings. 1. Tracing the background history and the justification of the criminal mediation model. 2. Brief look at the arguments for the criminal mediation while analysing the shortcomings and flaws existent within the current practice('mediation implemented in stage of prosecution') and reformative Victim Protection Act. 3. The rebuttals of the opposed and refutations, as well as construction of the legalizing plan. 4. Lastly, a number of misconceptions of the criminal mediation and explanations to clarify them.

한국 형법의 사회상규조항의 기능과 형법학의 과제

김성돈(Kim, Seong Don) 성균관대학교 법학연구소 2012 성균관법학 Vol.24 No.4

By tracking down the dysfunction the normal social rules clause of Korean criminal law shows, this treatise sought out the measure that minimizes such dysfunction. For this, an arrangement was made as to how the Supreme Court of Korea is defining the concept of normal social rules concept and normal social rules clause, as well as what the court puts the clause’s theoretical basis on. Based on this, how normal social rules clause and social rule concept are applied in a criminal trial in practice was looked into; various aspects of normal social rules clause as well as normal social rules concept being utilized in criminal trials were studied by separating them into proper function and dysfunction; and lastly, legislative, interpretative and criminal law’s methodological task were sought after, in order to remove or minimize the dysfunctions.

조선전기 형사법과 형정운용에 나타난 愛民的 刑事政策

김성돈(Kim Seong Don) 성균관대학교 비교법연구소 2008 성균관법학 Vol.20 No.1

It is possible to detect traces of criminal policy involving tolerance and forgiveness through examining the penalty-related article in the Record of Choson Dynasty. The purpose of this research is to uncover to what extent this criminal policy for the people occupied significance in criminal practice of Choson dynasty. If the operation of criminal system of Choson emphasized on not oppression provoking ruthless fear, but on tolerance, forgiveness and Caring people, then this is moral crux either today’s philosophy of punishment or criminal practice should succeed. Consequently, the research has abstracted examples of commiserative penal administration that showed up from the founding of Choson to codification of Gyonggukdaejon. As a result, it can be said that the early Choson’s commiserative criminal practice came to be the basis of today’s criminal practice as the breakthrough to carry out constitutional and moral state harmoniously. Moreover, as a consequence of such practice having penalty as a measure of displaying generosity and embrace to the people and hence drawing loyalty from them, rather than as a means of oppression and fear, it was possible to perceive that it became essential points in the process of penalty.

형사사법과 회복적 사법

김성돈(Kim Seong-Don) 성균관대학교 법학연구소 2005 성균관법학 Vol.17 No.1

"Restorative Justice" is the main phrase used worldwide to describe alternative ways of responding to crime. The term "Restorative Justice" is commonly applied to a wide variety of practices that seek to respond to crime in a more constructive way than conventional criminal justice system. This paper explores not only the definition, goal and main philosophy of restorative justice, but also the historical background and the development of restorative justice. Restorative Justice processes, in their purest form, involve victims and their offenders in face-to-face meetings and it is these participants who determine how best deal with the offence. Three practices currently fully these requirements: mediation, conferencing and circles. Although there are paradoxes and problems of restorative practices, are also to be find promises of these new paradigm. Therefore, I argue in this paper that there exist possible ways out of the current dilemmas and problems and that the time is ripe for steps to be taken towards restorative justice also in korean criminal justice system.

속인주의와 형법 제3조의 재음미

김성돈(Kim Seong-Don) 성균관대학교 법학연구소 2005 성균관법학 Vol.17 No.2