카메라 등 이용 촬영죄의 기수시기 : 대법원 2011.6.9. 선고 2010도10677판결,공2011,1420

문성도(Mun Seong-Do) 숭실대학교 법학연구소 2012 法學論叢 Vol.27 No.-

Article 13 paragraph ① of Korean Act on Special Cases concerning the Punishment, etc. of Sexual Crimes says as follows : Article 13 (Taking Pictures by Camera etc) ① A person who takes a picture of another's body which provokes people's sexual desires and causes the public to feel shame using a camera or other a similar equipment, or who distributes, sells, lends, openly displays or shows the taken pictures, shall be punished by imprisonment for not more than five years or by a fine not exceeding thirty million won. Recently Korean Supreme Court ruled in the criminal case where a man pushed into a woman's mini skirts to take moving pictures and stopped to take pictures without pushing the button to save the pictures in the photo album when a policeman just observed the crime on the crime scene, the crime of taking pictures by camera etc had been committed completely. So to speak, the Supreme Court said that crime didn't stopped only in the stage of attempted crime but got to the stage of consummated crime when data of pictures saved in the RAM(random access memory) not in the auxiliary memory unit like a hard disc drive or a USB memory card. This review comments on this Supreme Court's judgement from the viewpoint of the hermeneutics. In this review firstly is examined how this article was legislated in 1998 and developed since then. Then is reviewed what benefits this provision protects, and what factors must be to constitute the consummated crime perfectly. Lastly, is discussed whether this judicial judgement on consummated crime of taking pictures by camera etc is right or not.

[논문] 영장주의의 비교법적 고찰 - 한국 헌법 제12조 제3항과 미연방헌법 수정 제4조의 규범적 특징을 중심으로 -

문성도(Mun Seong-Do) 한국형사법학회 2005 刑事法硏究 Vol.24 No.-

The warrant-requirement principle means that arrest, search and seizure shall not be made without presenting the warrant that a judge has issued in the due process on request of a prosecutor except for exigent circumstance or flagrante delicto. Korean warrant-requirement principle has been influenced by American warrant process from the adoption of this principle to now. It was adopted on the basis of the Ordinance No. 176 proclaimed under United States Army Military Government in Korea(March 20, 1948). This study reviews this warrant-requirement principle from the viewpoint of constitutional criminal procedure. It also attempts to trace its original meaning and to reach its understanding by comparing the American and Korean Constitution on the historical interpretation method. The second chapter discusses the problem of general warrant. As to general warrant, American Constitution prescribes explicitly ""no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized."" The third chapter reviews that a warrant is required prior to a search or an arrest. Especially it discusses whether in USA this interpretation is prevailing doctrine. The fourth chapter explains that a warrant must be issued by a judge. it discusses why it is a judge who issues a warrant. The fifth chapter reviews whether it is a fundamental factor that a warrant issued on request of a prosecutor. The sixth chapter explains a warrant shall be presented required prior to a search or an arrest and reviews whether no exceptions may not be allowed by Korean Constitution. The seventh chapter discusses that investigative authorities may request an ex post facto warrant, in case a criminal suspect is apprehended flagrante delicto, or where there is danger that a person suspected of committing crime punishable by imprisonment of three years or more may escape or destroy evidence.

논 문 : 한국 검경관계 현황 및 전망 -1935年 중화민국 형사소송법과 비교법적 고찰을 중심으로-

문성도 ( Seong Do Mun ) 한국경찰법학회 2015 경찰법연구 Vol.13 No.2

Under the current Korean Criminal Procedure Act, a public prosecutor is the authoritative body in criminal investigations and entitled to supervise a judicial police official. Any judicial police officer or assistant shall investigate crimes under instructions of a public prosecutor. A public prosecutor belongs to Supreme Prosecutors`` Office. On the other hand a judicial police official belongs to National Police Agency or other administrative agency. Most of criminal investigations are made by police officials of National Police Agency. So, there are constant disputes between Supreme Prosecutors`` Office and National Police Agency over empowering police with an independent investigative authority in Korea since 1945. This review firstly analyzes how Article 196 of Korean Criminal Procedure Act had been made in 1954 since 1945. Then this review compares Korean Criminal Procedure Act of 1954 with Chinese Criminal Procedure Act of 1935 and looks into the details and the most striking features of the relationship between prosecutors and judicial police officials. Lastly, this review go over the main points of Korean Criminal Procedure Act revised in 2011 and discusses on reasonable relationship between prosecutors and judicial police officials based on most striking features of the relationship between prosecutors and judicial police officials in Chinese Criminal Procedure Act of 1935.

헌법상 영장 제시 조항의 문제점과 합리적 개헌방안

문성도 ( Mun Seong-do ) 한국경찰법학회 2018 경찰법연구 Vol.16 No.1

Warrants issued by a judge on request of a prosecutor in the due process of law shall be presented in case of arrest, custody, search or seizure against citizen's person or in his residence.(The constitution of the Republic of Korea §12 ③, §16) Few legal problems evoke more passionate debate about the balance between prerogatives of the government and the liberty of the individual than this warrantrequirement- doctrine. Recently in Korea it is passionately disputed whether a clause of ‘on request of a prosecutor' regarding warrant-requirement principle shall be crossed out or not. President Moon suggested a revised bill of the Korean Constitution in 2018, and crossed this clause of 'on request of a prosecutor' out. But, there is no remarks about the problem and revised bill of Korean constitutional warrant-presentation-requirement. I will study this problem and suggest a revised bill of Korean constitutional warrant-presentation-requirement from the viewpoint of comparative constitutional criminal procedure and the legal history. Following questions shall be raised and reviewed with regard to constitutional warrant-presentation-requirement. Firstly, how was this constitutional warrant-presentation-requirement developed in Korea? This chapter reviews aims and original meaning of constitutional warrant-presentation-requirement clause. Secondly, what is the problem of this constitutional warrant-presentation-requirement clause. Lastly it will be reviewed what is a reasonable revised bill regarding constitutional warrant-presentation-requirement through comparative constitutional criminal procedure.

2007년 정신보건법 일부개정법률안에 대한 고찰 -강제입원절차와 경찰관 동의를 중심으로-

문성도 ( Seong Do Mun ) 한국경찰법학회 2007 경찰법연구 Vol.5 No.1

Mr. Sang-Jin Shin, a member of National Assembly was preparing for laying private member`s bill of Mental Health Act before the Congress in June 2007. This review on this bill was written with an emphasis on the forced hospitalization procedure and police officer`s agreement at the request of the Legislative Office of the Secretariat of the National Assembly. In this review firstly is examined how the Mental Health Act was legislated in 1995 and developed after that, and what problem and criticism has been raised. Then is reviewed whether the mental disorders may be associated with a variety of criminal offenses, especially violent offenses and murders. Most psychological research literature supported that mentally disordered individuals - even severely mentally disordered - are no more likely to commit serious crimes against others than member of the general population are except for current serious mentally disordered individuals with a history violent behavior. Based on this psychological research, this study suggests legal viewpoint on the Mental Health Act and the forced hospitalization procedure and police officer`s agreement. From this normative viewpoint this study remarks on the reform bill of Mental Health Act 2007 with an emphasis on the forced hospitalization procedure and police officer`s agreement.

주취자에 대한 경찰조치의 실태와 문제점 : 주취자에 의한 법의침해 실태와 법적 대응을 중심으로

문성도 ( Seong Do Mun ) 한국경찰법학회 2009 경찰법연구 Vol.7 No.2

Recently several crimes under influence of alcohol sent shock waves through the nation in Korea. Over-drinking might cause not only various health problems but also serious crimes. The Korea Super Prosecutor`s Office`s Analytical Report on Crime 2009 indicates that 17.9% of Crimes, especially 36.3% of murder, 48.6% of arson, 31.6% of rape, 33.9% of violence, 61.0% of unlawful interference with an officer in the execution of his duty were committed under influence of alcohol. In this review firstly is examined how much alcohol have a detrimental effect on crime and how much heavily drunken people do harm other people in our society and police officers in the police box. Most psychological research literatures support that alcohol may be associated with a variety of criminal offenses, especially murders and violent offenses. The Korea Super Prosecutor`s Office`s Analytical Report on Crime 2009 also indicates reflects similar results. Then is reviewed how police officers, especially in the police box treat heavily drunken people. A police officer who is under obligation to deal with heavily drunken people is lay policeman and lacks in adequate facilities and equipments. Based on this empirical analysis, this study suggests that heavily drunken people should be treated as patient than crimial or potential criminal and that it is necessary to create more systematic and efficient systems to protect and cure heavily drunken people.

형법 제34조 제2항의 법적 성질

문성도 ( Seong Do Mun ) 한국경찰법학회 2006 경찰법연구 Vol.4 No.1

2007년 긴급체포제도 개정의 법적 의의 -사법제도개혁추진위원회 개정 논의 과정을 중심으로-

문성도 ( Seong Do Mun ) 한국경찰법학회 2007 경찰법연구 Vol.5 No.2

Few legal problems evoke more passionate debate about the balance between prerogatives of the government and the liberty of the individual than the warrant-requirement principle and exigent arrest system in Korea. The Korean Constitution says that warrants shall be issued in case of arrest, custody, search or seizure, but in case a criminal suspect is apprehended flagrante delicto, or where there is danger that a person suspected of committing crime punishable by imprisonment of three years or more may escape or destroy evidence, investigative authorities may request an ex post facto warrant.(ROK. Const. XII ③) The korean Criminal Procedure Act says that where there is no time that arrest warrant can be issued by a judge and danger that a person suspected of committing crime punishable by imprisonment of three years or more may escape or destroy evidence, investigative authorities may make an exigent arrest and request an ex post facto custody warrant. Investigative authorities don`t arrest warrant, much less request an ex post facto custody warrant where they release arrestee within 48 hours. Many people have insisted that this exigent arrest system violate the Constitution since this system was established newly in 1995. Many people have insisted and rebuked that investigative authorities was making an improper use of their exigent arrest power. With a view to solving these problem, Criminal Procedure Act 2007 provided that investigative authorities shall request an ex post facto custody warrant within 48 hours where they make an exigent arrest, and notify a local court of why they did that. This reform result from the Reform Bill on Criminal Procedure Act by the Presidential Committee on Judicial Reform. In this review is examined how this Reform Bill was established in 2005, whether it solved many legal problems raised, and what are their legal meanings.

음주 폐해 예방과 감소를 위한 경찰 대응과 문제점 : 상습주취자 치료,보호 프로그램을 중심으로

문성도 ( Seong Do Mun ) 한국경찰법학회 2010 경찰법연구 Vol.8 No.2

논문 : 집회,시위에 대한 촬영의 법리

문성도 ( Seong Do Mun ) 한국경찰법학회 2005 경찰법연구 Vol.3 No.1