집단인식의 법리와 의도적 인식회피 -결합론에 대한 비판과 조직모델적 대안의 검토-

안성조 ( Seong Jo Ahn ) 안암법학회 2011 안암 법학 Vol.0 No.34

The problem of how to assign mens rea to a corporation in a criminal prosecution has been a troubling one for courts and commentators alike. After the decision in United States v. Bank of New England, N.A., most commentators thought that new method of easily imputing criminal intent to a corporation had arisen. This is the collective knowledge doctrine. Under this doctrine, courts supposedly may collect the knowledge possessed separately by different employees within a corporation so as to create the requisite guilty corporate state of mind, even if there is no single employees entirely at fault. However, some commentators argue that Bank of New England has been misread, because it allowed collectivized employee knowledge on in the face of culpable corporate conduct, namely the corporation`s willful blindness to factual information and legal requirements. They tried to demonstrate that the willful blindness prerequisite for knowledge aggregation is a powerful for explaining every other leading cases included within the collective knowledge doctrine. Also they argue, to aggregate corporate knowledge without the presence of willful blindness would violate the Constitution, and conclude that the collective knowledge doctrine is not an independent method for establishing corporate mens rea, but rather exists as a logical corollary to the much more common method of establishing scienter through willful blindness. This paper examines these argument critically and in the end concludes that firstly, in the view of organizational model, the leading cases need not be interpreted to require willful blindness, because they could be understood as reflecting the organizational model and secondly the doctrine could be regarded as independent method for establishing corporate intent, and finally the doctrine without the presence of willful blindness does not violate the Constitution.

괴델정리의 법이론적 함의

안성조 ( Seong Jo Ahn ) 서울대학교 법학연구소 2008 서울대학교 법학 Vol.49 No.4

The Critical Legal Studies(CLS) movement has for several years criticized mainstream legal scholar`s belief that the law can determine outcomes in legal disputes. CLS charge that this vision of the law is an illusion; legal formalism does not exist. According to them judges are always free to make decisions as they see fit, relying on their own predilections, insights and life experience. They offers a thorough theoretical deconstruction of contemporary American legal thought arguing that law is, and can only be, indeterminate. To support this argument, CLS scholars have offered extensive commentary on the limitation of human language. Language is subjective and imprecise, they argue, traits which the law (being dependent on language) must share. Given the inherent limitations of language, the law cannot uniformly and objectively inform and constrain judicial decisions. In addition to linguistic arguments, they asserted that mathematical theories and proofs have surfaced in debates over indeterminacy in the law. Anthony D`Amato, for example has argued that two related-though distinct- mathematical results, the Lowenheim-Skolem Theorems and Godel`s Incompleteness Theorem, demonstrate that even though language is precise and objective, the law still must prove inherently indeterminate. The Lowenheim-Skolem Theorems, according to him, reveal that a case can be decided either way consistent with any legal theory. Furthermore, Godel`s Incompleteness Theorem proves that legal, textual and linguistic demonstration must propagate propositions that can neither be proved nor disproved. Godel`s proof reveals that the law cannot be a determinate formal system. Like mathematics, the law is either incomplete and must look outside itself for guidance, or it is inconsistent and contradicts itself. As a mechanical system, the law is and must be incomplete. But it is very important to point out that this indeterminacy does not mean any result is possible, instead permits particular range of choices.

기업 사이코패시와 집단책임의 이론

안성조 ( Ahn Seong Jo ) 한국외국어대학교 법학연구소 2010 외법논집 Vol.34 No.1

Global financial crisis has arrived, which attacked all the world's economy and made it down. Naturally diverse reflective arguments on economic and legal liberalism have been rising nowadays. They are mainly focused on corporations' pathological pursuit of interests and power. Today, the corporations have risen to dominance in most sectors of our society. To avoid and control the overuse of corporations's power, it is necessary that we should regard them as a psychopathic entity. As a matter of fact, so many psychiatrists and psychologists argued the traits of corporations are very similar to those of psychopathy that even legal scholars also are more and more inclined to take corporate psychopathy into consideration. In order to regulate and control the corporation's power and make it not be abused, we need to examine the theory of collective guilt proposed by George P. Fletcher in his famous book the Romantics at War(2002). In his book, Fletcher argued that in some conditions, not only an actor but also the collective entity surrounding or behind him is culpable. For example, Nazi Germany is culpable for pogrom and the Al-Qaeda is also culpable for 9.11. He called this kind of guilt, the collective guilt. From his view, we can derive very important conclusions necessary to control appropriately the corporations. In certain conditions, in that the internal cohesion between an actor and the collective entity is strong enough for him to regard himself as the representative of whole entity, the collective entity can be culpable. Similarly, if there are the same conditions between a member of corporations and the corporation itself, the corporation can be culpable. In other words, Fletcher's theory of collective guilt can be applied to reconstruct corporate criminal liability and thus supply us with legal tools that make it possible to treat corporations as criminal actors.

영상녹화물의 증거능력

안성조 ( Ahn Seong-jo ),지영환 ( Ji Young-hwan ) 한국외국어대학교 법학연구소 2008 외법논집 Vol.30 No.-

Video-Recording means the video-recording of defendant's statements by the Investigating Agency, whereas the Video-tape is the video-recording not by the Investigating Agency in the new code of criminal procedure. Video-Recording System was introduced to New Code for the purpose of transparency at the investigating process. In relation to Video-Recording System, Disputes do break about the admissibility of Video-Recording by prosecutors or polices in the Korean New Code of Criminal Procedure. The Negative View argues that the admissibility of video-recording should be denied, because firstly, the New Code does not permit the interpretation that the video-recording is admissible at the court, and secondly the video-recording too vivid for judge or jury to fairly decide the case and the time of trial could be delayed. But the Positive View which is also our view refutes the Negative View. Firstly, the New Code can be interpreted to authorize the admissibility of video-recording. Secondly, the vividness of video-recording is not the defect but the merit for the fair decision of judge and the danger of retardation of trial can be overcome because the video-recording tape could be displayed selectively or partly at the court.

자치단체와 국가경찰의 범죄예방사무의 협력방안 -CCTV 설치 및 운용상 협력에 관하여-

안성조 ( Seong Jo Ahn ) 한국경찰법학회 2013 경찰법연구 Vol.11 No.1

Generally speaking, CCTV is a necessary evil in our life. It has been thought to be an equipment of crime prevention and social safety. However, it also has been thought to infringe on our basic rights such as portrait rights, privacy and right to self-control over personal informations if the equipment is incautiously installed and operated. Therefore, we have to take the merits and defects of CCTV into consideration when using CCTV for the purpose of crime prevention. This paper suggests the ways to cooperate on crime prevention between local government and police in case of installing and operating the CCTV. Firstly, local governments should cooperate with the police in order to share the expenses of CCTV installation. Secondly, local governments should pay due regard to the analysis of high crime areas and conditions of public security made by the police. Thirdly, among the police, local governments and civil services, at least two of them should be the subject of operating CCTV within the Joint Control Center. For this, personal information protection act should be partly revised. Fourthly, the national assembly or a local assembly should be subjects of supervising the CCTV operation of local government and the police.

부정수표단속법상 과실범 처벌의 정당성 -과실범 처벌규정의 입법취지를 중심으로-

안성조 ( Seong Jo Ahn ) 한국경찰법학회 2014 경찰법연구 Vol.12 No.2

The healthy circulation of check is largely depend on the trust in capitalistic society. For instance in case the originator issues his payment instruction by check, it is common practice for the bank of beneficiary, which is the payee, to enter a provisional credit in the beneficiary`s account as soon as hi pays in the check to his bank. Thus it is necessary for modern society to protect the function of check in many ways, especially by laws. Some critics have argued that the regulation of criminalizing negligence in Dishonoured Cheques Act cannot be justifiable in that this Act imposes penalty on those who draw a dishonoured check not only with intention but also with negligence, which is against modern legal principle that intentional act should be criminalized in general and negligent act should be punished exceptionally only when there is enough justifiable grounds. This paper examined the validity of critics` arguments and concluded that we can find reasonable grounds of the regulation of criminalizing negligence in Dishonoured Cheques Act in the legislative intent of the regulation taking the backgrounds of the Act into account.

효당 엄상섭의 형법이론과 형법사상

안성조 ( Ahn Seong Jo ) 서울대학교 법학연구소 2017 서울대학교 법학 Vol.58 No.1

This paper tries to re-examine the Eom Sang Seop`s theory and thought in criminal law, while criticizing the previous studies on his works regarding criminal law and re-interpreting his works in the view of human right and evolutionary theory. The paper argues that some existing theoretical remarks about his works such as his misunderstanding of normative guilt theory is inappropriate, because the remarks are based not on legal theories of the time, but on those of modern times. It shows that some legal critics are very cautious about evaluating Eom`s essays and seem to arrive at a correct conclusion, but other are not. It is clarified in this paper first, Eom` understanding of normative guilt theory is correct second, Eom`s assertion of causation is questionable in that he seems not to be aware that determining if there was causation between action and result is a problem arising not in the domain of guilt but definitional elements and third, Eom`s legislative intention explicitly supports the argument that perpetration by means is not a principal but an accomplice (Teilnahme) in nature. Besides the paper suggests that Eom has a view that criminal law mirrors the spirit of a nation, so we should take it into consideration in legal interpretation, a belief in respect of human rights and an evolutionary perspective of criminal law and human nature.

형법의 해석과 적용에 있어서 규칙 따르기(Rule-Following) 논변의 의의

안성조(Ahn Seong-Jo) 한국경찰법학회 2006 경찰법연구 Vol.4 No.1

  Ludwig Wittgenstein"s work on Rules, especially the Philosophical Investigation(PI) has been put to a variety of uses by many legal theorists in various contexts since in the early twentieth century up to present times. One wave of legal theorists employ PI in an effort to show that law is radically indeterminate. They base their arguments on Saul Kripke"s unique and influential reading of PI. This essay begins with a consideration of Kripke"s rule-skepticism which is the result of his reading of Wittgenstein"s view on rule-following, and its implications for law. Like many legal theorist such as Brian Bix, Jes Bjarup, Scott Hershovitz, Christian Zapf and Eben Moglen, this essay conclude that Kripke"s view is defective, and as such tells us little about (criminal) law.<BR>  The second wave includes such kinds of legal scholars as turn to Wittenstein"s remark on rules to explain how it is that law can be determinate and also to show that law can often be applied and understood without legal interpretation. They are the views of Brian Bix, Andrei Marmor and H.L.A. Hart. Not only the rule-skeptics but also these kinds of views will be argued against in this essay, because Wittgenstein"s remarks on rules have little to offer legal theory and interpretation. That is, nothing much can be learned about legal rules or legal interpretation by attending to Wittgenstein"s remarks on rules. In short, though legal rules and Wittgenstein"s rules are aimed at wholly different phenomena, above legal theorists made mistake of criteria by using these different kinds of rules interchangeably.<BR>  But this essay will accepts the Hart"s theory, the core/penumbra case distinction which is also based on the Wittgenstein"s remarks on rules. Because though Hart also seem to confuse the legal rule with Wittgenstein"s rule, but we believe that his new idea of rule of recognition can cure the theoretical defect. The distinction of core/penumbra case has an implication for criminal law in relation to mistake of law. This essay argues that the core case show the criteria where mistake of law could hardly be made, because in the core case, there would be needed no legal interpretation. Scott Hershovitz thought that he had exorcised the phantom menace of Wittgenstein from legal theory, but it would be right that the real thing he had exorcised is not Wittgenstein, but misinterpretaion of his remarks. Wittgenstein is still alive here.

위임금액을 초과한 현금인출의 형사책임 -컴퓨터등사용사기죄의 성립여부(대법원 2006.3.24 선고 2005도3516판결)-

안성조 ( Seong Jo Ahn ),서상문 ( Sang Moon Seo ) 한국경찰법학회 2009 경찰법연구 Vol.7 No.1

According to the decision of Korean Supreme Court, in the case that a man who was authorized to withdraw money from a cash dispenser in fact overdrew money, he would be convicted not of a theft but of a computerfraud. The reason is that firstly the overdrawn money is not property but profit of fortune, and secondly the Korean Penal Code Art.347-2(computerfraud) prohibits only infringement of the profit of fortune whereas the Code Art.329(theft) prohibits only infringement of the property. There are many who raise a question why overdrawn money is not property but profit of fortune. This is crucial issue in order to understand the decision in question. Although several legal scholars argues that the money overdrawn from a cash dispenser is property as well as the money withdrawn from a cash dispenser by a thief, however there is a very important difference between them. When a thief withdraw money with a card, he would possess it all immediately. But when a man who was authorized to withdraw money from a cash dispenser overdrew money, he would possess the overdrawn rates of the money not immediately but after giving back the rest of the money. Therefore, the overdrawn rates of money should be treated as just potential profit, not real property. From these view, we can conjecture that the Court regarded the overdrawn rates of the money not as property but as profit of fortune. The decision is right in that the man was convicted not of a theft but of a computerfraud within our criminal law system.

사이코패스의 범죄충동과 통제이론 -사이코패스의 특이성과 통제이론적 접근의 한계-

안성조 ( Seong Jo Ahn ) 한국경찰법학회 2008 경찰법연구 Vol.6 No.1

Today, Psychopath is well known to our society for its sensational crimes, for example, its horrible serial killing without mercy. Generally psychopath is different from psycho, because the former could know the meaning and result of his own behaviour, so to speak, the right and wrong unlikely to the latter. So most people think that psychopath criminals should be sentenced to imprisonment or death penalty just as non-psychopath criminals. Moreover, they argue that the psychopath repeat offender should be punished gravely. But is it right treatment that psychopath should be punished gravely or samely just as non-psychopath criminals? Generally, psychopath has no self-control ability to suppress the impulse to crime. At this point, the Control Theory which sets forth as a premise that all men could commit a crime and the absence of self-control ability to suppress the impulse to crime is the cause of crime, might explain the mechanism of committing a crime of psychopath. But this essay argues that the Control Theory cannot apply to psychopath directly because it was designed to explain cause of committing or suppressing a crime of non-psychopathic, namely normal criminal. There are so may Control Theories such as Abert J. Reiss`s control theory, Ivan Nye`s social control theory, Walter Reckless`s containment theory, David Matza`s neutalization theory and drift theory, Travis Hirshci`s social control theory, and general theory of crime, etc. Among them, Abert J. Reiss`s control theory and Ivan Nye`s social control theory could not apply to psychopath, their premise that social control can suppress the impulse to crime is not applicable to psychopath, because psychopath has no conscience to internalize the social rules. Also the Walter Reckless`s containment theory, Travis Hirshci`s social control theory, and general theory of crime are not applicable to psychopath because, they focus on social bonds and family`s attachment as causes of suppressing the impulse to crime, but psychopath has been proved to be free from the elements of social bonds. In conclusion, different ways of criminal policy should be set up, for psychopath is different from other normal non-psycopathic criminals in personality.