우리나라의 새로운 테러방지법의 적용과 그 한계에 관한 비교법적 검토

조병선(Cho, Byung-Sun) 한국형사정책학회 2018 刑事政策 Vol.30 No.1

This article sets forth the evolution of Terrorism Law in Korea since 2000 in that so-called 9-11 accidents happened, Most recently, in March 2016, at last, Anti-Terrorism Law has been introduced in Korea since 15-years dispution in the Parliament. The article analizes the new Terrorism Law: especially its interpretation and its limitation in case of the application of the law. This article aims to compare the intelligence oversight systems over the intelligence agencies surveillance from the comparative point of view, and to look into ways to increase the effectiveness and efficiency of Korean parliamentary oversight of intelligence. It comes to the conclusion that the parliamentary oversight committees should be introduced in future. For the improvement of the Korean cases including the newly enacted Anti-Terrorism Law , should take the comparative approaches into consideration, and finally, the article suggests the desirable revision of the Anti-Terrorism Law .

특별섹션 논문 : 가족기업 승계 지원정책의 현황과 발전방안

조병선 ( Byung Sun Cho ),조봉현 ( Bong Hyun Cho ) 한국중소기업학회 2011 中小企業硏究 Vol.33 No.3

고령화 사회 진입으로 60~70년대 창업한 가족기업들이 승계문제로 어려움에 직면하고 있다. 정책적 지원이 미흡하여 사업승계가 원활하지 못하기 때문이다. 사업승계에 대한 부분적인 지원 제도들이 나오고는 있다. 가업상속 공제율 확대, 가업승계지원센터 운용 등 승계의 지원기반은 어느 정도 형성되어 있다. 하지만, 지원요건이 까다로워 기업 현장과는 괴리가 있을 뿐만 아니라 선진국에 비해서도 매우 미흡한 실정이다. 우리 경제에서 중요한 기능과 역할을 하는 가족기업들이 승계가 원활하지 못해 경쟁력을 상실하거나 폐업으로 이어질 경우 국민경제에 심각한 영향을 초래하게 된다. 독일과 일본에서는 사업승계를 제2의 창업으로 인식하고, 고용유지 및 기업의 지속 가능한 성장 등을 위해 획기적인 승계정책을 시행하고 있다. 따라서 우리나라도 전향적인 시각에서 접근하여 사업승계 지원정책을 수립하고 추진해 나가야 할 것이다. 우선 사업승계 지원요건을 기업 현실에 맞게 현실화시켜야 한다. 피상속인 및 상속인 요건을 완화하고, 10년으로 되어 있는 사업영위기간을 줄일 필요가 있다. 중견기업의 승계에 새로운 걸림돌로 작용하는 매출액 1,500억 원 이하 조건은 시급히 개선돼야 한다. 가족기업들이 선호하는 증여 형태의 승계를 활성화 하는 차원에서 사전상속 특례제도의 획기적인 조치가 요구된다. 가족기업의 특성과 현실을 반영하여 비상장 주식 평가방법도 개선해야 한다. 사업승계 정책은 이제 시작단계이다. 사업승계를 촉진하기 위해서는 맞춤형 승계 지원정책이 지속적으로 강구돼야 할 것이다. 승계 과정에서 불확실성을 완화시켜 승계 결정을 순조롭게 하기 위해 동의권부 주식 도입이 바람직하다. 사업상속을 저해하는 조세장벽의 해소와 조세부담의 공평성을 조화시킬 수 있는 방안으로 자본이득에 대한 이월 과세 제도를 적극 시행할 필요가 있다. 궁극적으로는 독일처럼 상속 또는 증여 받은 가족기업을 계속 성공적으로 경영하고 일자리를 유지하는 경우에 상속·증여세를 일정 비율만큼 감면해 주는 ``사업승계 성과 조건부 상속세 감면제``의 시행을 검토해 볼만하다. 이러한 가족기업의 승계를 위한 정책이 제대로 추진되기 위해서는 가족기업 승계지원특별법 제정 , 사업승계진흥원 신설 등 지원체계를 갖추는 것도 중요하다. The weight of family business taking a share in a national economy is very high and family business contributes significantly to the creation of wealth, the provision of job opportunities, the national economy and social stability. As society is advancing into an aging one, business succession for enterprises that were established during the 60~70s is being magnified as the biggest pending management issue for family enterprises. According to a survey carried out by the Korea Federation of Small/Medium Businesses targeting 500 small/medium manufacturing enterprises with a regular employee size in the range of 5~300 people, post-generation foundation managers account for 12.2%. When estimating the number of family enterprises of which have gone through succession based on this (as of 2008), it reaches approximately 13,658. ABusiness succession is emerging as a major issue of management as among small/medium enterprises the number of enterprises of which succession is under progress or scheduled in the future reaches 70 percent. It was revealed that managers of small/medium enterprises have a pressing concern over business succession as seen from the fact that only 11.4% of enterprises did not show any intention of succession. As such, most family businesses want business succession, the reality in Korea is that heavy inheritance tax, gift tax, negative society reaction and inadequacy of successor fostering pose stumbling blocks to business succession due to the insufficiency of political support. So far, the establishment of a support policy for business succession by the government was out of the question as the view that business succession was tantamount to ``a passing-down of wealth`` was prevalent. Currently, a partial support system for business succession that includs the expansion of inheritance deduction is being presented. Support foundation for family business succession including the expansion of the deduction rate for family business inheritance, an exceptional system for prior inheritance, a postponement of tax payment system and operation of a support center for family business succession is being formed. In 2009, in case that a family business inheritor should operate his/her business lawfully even after inheritance by succeeding an enterprise that is more than 10 years old, the deduction amount of family business inheritance deducting from inheritance property value was increased from 20 to 40% and deduction limitation for family business inheritance was also was expanded from the previous 3 billion (KRW) up to 6-10 billion (KRW) depending on the period of family business operation by the deceased founder and accordingly, the burden of family business inheritance tax was greatly decreased. According to the ``Tax Law Amendment of 2011``, it was stipulated that the deduction rate for family business inheritance be expanded from 40% of total amount of family business inheritance property to 100%. The deduction limitation was also expanded depending on the family business operation period of the founder from the existing 6 billion to 10 billion (KRW) in case of operation of more than 10 years, from 8 billion to 15 billion (KRW) for over 15 years and from 10 billion to 50 billion (KRW) for over 20 years. However, as the requirement for support is too demanding, there is a gap between this system and enterprise reality and moreover, this system is not sufficient when compared with the cases of advanced countries as well. In case that family enterprise should lose competitiveness or lead to a shut-down due to a rough succession, valuable intangible assets, including technology and knowledge accumulated within the enterprise would cease to exist and job opportunities and production facilities would be lost. As a consequence, the national economy will also be considerably adversely affected. In the cases of countries like Germany and Japan that progressed with industrialization ahead of our country, they are implementing a ground breaking succession policy for maintaining employment and ensuring sustainable growth under their recognition that business succession is a second foundation. While exempting succession-related taxes, including inheritance tax and gift tax drastically, they support the sustainable growth of their enterprises. Therefore, Korea is also required to establish a support policy for business succession and promote it through an approach in their proactive perspective. Creation of new job opportunities and foundation promotion to recover the growth power of national economy is important, but maintaining an enterprise that has been cultivated by investing efforts and resources since its foundation and a succession that enables sustained growth also falls under the category of very important policy tasks. In order to facilitate business succession, a new support policy for succession shall be pursued on a sustained basis. First, the requirement of support for business succession should be actualized to match the reality of enterprises. The period of business operation of the founder was sharply strengthened from 5 years to 10 years in the past but this period should be shortened drastically considering the average operation period of small/medium enterprises of 10.7 years and requirement for holding the office of representative director over 60% of the time or over 8 of 10 years (shouldn`t this be 6 of 10 years? Delete this note after checking) before inheritance starts should be improved to be match reality. In addition, in order to facilitate family business succession of unlisted small/medium, middle standing enterprises that have relied on external investment capital in the growth process of enterprise, the requirement for share of the largest shareholder of the decedent should be alleviated. Even if an enterprise should graduates from the small/medium enterprise circle, the inheritance deduction benefit is limited up to a turn-over of 150 billion (KRW) but this limit should be expanded to a turn-over of 300 billion (KRW) to facilitate the growth of small/medium enterprises into large corporations. Second, with a view to activating a succession in a form of gift preferred by family enterprises, a revolutionary measure for an exceptional system of prior inheritance is required to be considered. It is considered to be reasonable that the limit of support for prior inheritance be increased from the existing 3 billion (KRW) to 10 billikon (KRW). Reflecting the characteristics of family enterprises and reality, the evaluation method of unlisted stock should be improved as well. A method of lowering the maximum tax rate of inheritance and gifts by limiting its target to family enterprises and abolishing extra charge taxation should be pursued so that family enterprises may not give up a succession due to heavy taxes. Third, in order to encourage the intention of succession by somewhat alleviating uncertainties in the process of succession, an introduction of stock having an approval right is desirable. It is required to proactively review the possibility of introducing a carry-over taxation system for capital gain as a way of eliminating taxational barriers that deter business succession and harmonizing the justice of the tax burden. A taxation method for the acquisition value of succession that is viable to be introduced at this juncture may quote a tax support system for a merge among small/medium enterprises, a regulation of the special tax control law, as a substitute method for partial inheritance tax. If the system is converted to taxation method for the acquisition value of succession, a similar effect would be exerted in terms of carry-over of the tax burden and it will be effective for a smooth succession of the family enterprise. Fourth, ``a system of exempting inheritance tax subject to achievement of business succession`` that exempts a certain rate of inheritance, a gift tax in the case that a small/medium enterprise was inherited or gifted is operated successfully and continuously while employment is maintained, like the case of Germany, should be implemented. This system is required to be implemented with priority targeting an enterprise that was succeeded to a successor after it had been operated for more than 20 years as a small/medium enterprise and attains management achievement steadily while creating employment and paying taxes adequately. This system is to be exempt from taxes for a period of 10 years by a constant rate (10% per year) in case that certain requirements are satisfied after determining inheritance, gift tax at the time of business succession and measuring enterprise achievement for the determined tax every year. Fifth, in order to support business succession of family enterprises comprehensively and systematically, a support system, including an enactment of special law to support family enterprise succession, and the establishment of a business succession promotion agency should be undertaken. Comprehensive support for business succession would be enabled and its effect would be taken substantially only when a special law is enacted. Once the groundwork for supporting family business succession has been laid down, it should be combined in a single body by the enactment of a special law, and the efficiency of the policy execution could be enhanced. Limitation of partial support for family business succession by a general law could be overcome. When a special law is enacted, a separate tax rate (bringing down maximum tax rate) differentiated from general inheritance tax could be applied to family business succession. The last thing to be emphasized is that in order to support sustained growth of family enterprises, a reliable mainstay and a hope leading our economy, now is the time for the government authorities concerned and financial institutions, not to mention of representatives of the relevant enterprises, to exert their respective efforts to arrange realistic counter-measures and provide efficient support for successful business successions. All of us should recognize the fact that only when fostering small/medium enterprises to carry on their family line for a long time will the growth of these enterprises and the future of Korean economy be promising.

형벌과 과태료의 기능과 그 한계 -과태료일반법의 필요성을 중심으로-

조병선 ( Byung Sun Cho ) 청주대학교 법학연구소 2003 法學論集 Vol.20 No.-

The legal question raised by Kwataeryo is whether a mere change of ``label``, from criminal wrongdoing to regulatory wrongdoing, eliminates the need to extend to individuals prosecuted under them all the constitutional protections accord defendants in criminal trials. The difficulty in insuring a triumph of substance over from in this area lies in the definition of criminal wrongdoing as opposed to regulatory wrongdoing. This research will explore the various approaches to solving these legal issues, and in so doing, identify the key distinctions between criminal and regulatory wrongdoing. By focusing the purpose for the separate existence of criminal wrongful act and regulatory wrongful act, a workable test for discrimination between two forms from the German and American experience may be developed. Especially the German experience has become a worldwide Model for Regulatory Offense Law. Finally the author inquires into the function, operation and necessity of changing the Regulatory Offense Law in Korea and examines the doctrinal roots of traditional agency practice regarding the imposition of penalties in order to determine whether this practice is reasonable. This evaluation requires the examination and the comparison of foreign legal models.

형법에 있어서 행위자의 특정과 단체책임

조병선 ( Byung Sun Cho ) 청주대학교 법학과 2010 法學論集 Vol.32 No.2

근대형법학의 발전 이후 가장 심각한 ``형법학의 위기``를 맞이하여 이 논문에서는 현대산업사회의 조직화되고 체계화된 산업구조 속에서 더 이상 실행행위자를 단순히 시각이나 촉각으로 감지되는 행위의 주체로만 보기는 어렵게 되었다는 문제를 제기하였다. 이제 단순히 조직의 측면에서 뿐만 아니라, 행위의 과정이 현대산업사회의 역할분담 또는 분업에 따라 다단계에 걸쳐 일어날 경우, 그 인과과정을 거슬러 올라가면서 형법상 결과를 야기시킨 근원지점을 규범적으로라도 설정하지 않을 수 없게 되었다. 이 때 행위자들은 다시 수평적으로도 정범인지 공범인지도 논의될 뿐만 아니라 어느 지점의 행위부터 행위자로 봐야하는지의 문제가 복잡하게 얽히게 된다. 필자는 이를 ``행위자의 특정``이라고 포괄적으로 지칭하였다. 한편 필자는 이 논문에서 이와 같은 법형상을 모두 포괄하는 ``행위자의 특정``에 대하여 이론적 분석을 시도하고자 하였다. 근대 형법도그마틱의 금자탑이라고 할 수 있는 책임원칙(또는 책임주의)은 개별행위의 주체자인 ``개인``을 그 단위로 하는 것도 인간의 자유와 존엄을 보호하고자 태동한 근대형법의 발전사에 비추어 당연한 전제가 될 것이지만, 필자는 이 논문에서 이러한 근대형법의 금자탑을 더욱 발전시키는 의미에서 책임개념을 확대시키고자 시도하였다. 즉 개인책임의 개념 이외에 ``단체책임``이라는 개념 내지 카테고리(범주)를 만들어 책임개념을 재구성하는 것이 어설프게 책임개념의 예외를 인정하는 것보다 훨씬 바람직하다는 의미에서 그러한 시도를 하였다. 현재 국내외를 막론하고 판례나 연구문헌 등에는 누구도 책임개념을 파기한다거나 ``책임주의의 예외``라는 표현을 하고 있지 않지만, 사실상 최근의 형사입법을 보면 이미 기존의 통상적인 책임주의의 관점으로는 포괄되지 않는 조문들이 늘고 있다. 종래부터 말하는 책임원칙으로서는 더 이상 설명하기 어려운 최근의 형사입법에 대하여 이제 형법학은 더 이상 우회적이거나 예외적인 이론구성으로 대처하기에는 한계에 이르렀다고 보여진다. 이러한 문제의식을 가지고 이 논문은 지금까지 ``행위자의 특정``이라는 법형상을 파악하면서 기존의 개인책임이라는 범주 외에 새로운 범주로서의 ``단체책임``이 필요하다는 점을 강조하였다. On 27 November 2007, the Korean Constitutional Court declared in a landmark ruling that the joint penal provision cannot be found constitutional because it violates the guilt principle guaranteed by Korean Constitution. Thus lots of laws that include the joint provision has been revised. However, Corporate Criminal Liability according to the new joint penal provision is still unclear to construe the concept of corporate guilt. The underlying basic problems consist in the conflicts triggered by different qualities of the reception of foreign legal system, especially continental civil law system and Anglo-American common law system. If one wishes to make the revised joint provision fit to guilty principle, it would, in any event, be necessary to adopt and transform basic concepts of criminal law so that they ``fit`` the special characteristics of a legal person. Whether or not such transformation is possible and, if so, desirable is the issue on which the debate in Korea, Germany and the United States has centered. This paper takes a closer look at the requirements for corporate criminal liability according to the joint provision. Three questions, ``Corporations Do Not Act?``, ``Corporations Cannot be Morally Guilty?``, and ``Criminal Sanctions Do Not Apply to Corporations?``, have been fully illustrated and analysed from a prospective of guilty principle. The author concludes with a few sceptical relativistic remarks on the revision of joint penal provision triggered by a landmark ruling of Korean Constitutional Court.

질서위반행위규제법에 관한 연구

조병선 ( Byung Sun Cho ) 청주대학교 법학연구소 2007 法學論集 Vol.28 No.-

The legal question raised by Kwataeryo is whether a mere change of ``label``, from criminal wrongdoing to regulatory wrongdoing, eliminates the need to extend to individuals prosecuted under them all the constitutional protections accord defendants in criminal trials. The difficulty in insuring a triumph of substance over from in this area lies in the definition of criminal wrongdoing as opposed to regulatory wrongdoing. This research will explore the various approaches to solving these legal issues, and in so doing, identify the key distinctions between criminal and regulatory wrongdoing. By focusing the purpose for the separate existence of criminal wrongful act and regulatory wrongful act, a workable test for discrimination between two forms from the German and American experience may be developed. Especially the German experience has become a worldwide Model for Regulatory Offense Law. Finally the author inquires into the function, operation and necessity of changing the Regulatory Offense Law in Korea and examines the doctrinal roots of traditional agency practice regarding the imposition of penalties in order to determine whether this practice is reasonable. This evaluation requires the examination and the comparison of foreign legal models.

Reform Trends of Criminal Procedure in South Korea: Transition to Constitutional Guarantee of Human Rights

Cho Byung-Sun(趙炳宣) 미국헌법학회 2005 美國憲法硏究 Vol.16 No.2

This paper"s original assignment is to talk about reform trends of the criminal procedure in South Korea. This paper starts with a comment on the characteristic features underway: South Korea"s transition to globalization and constitutional guarantee of human rights. In other words, current reform trends and predictions about the course of development of todey"s South Korea, in the field of criminal procedure, can illustrate the movement from "Confucianization" to "globalization," and the movement from "rule of bureaucracy" to "rule of law." This reminds one immediately of analysis. The paper begins by my understanding of some characteristic features of South Korean law and its philosophical, socio-cultural backgrounds. The main focus of author"s personal diagnosis is centered on the pre-trial process and jury trials, because both the rights of criminal suspects and defendants and public trust in criminal justice have always been at the core of reform discussions over the past several years. Needless to say, author"s above overview is not to suggest that the ideal model for criminal procedure in a country and those in other regions are the same. Law is always a creature of time and place, and no two times and no two places are ever the same. But whatever the differences between South Korea and other reform trends may be, they are matters of degree only. However, when the fact that "matters of degree" basically result from legal culture being taken into account. one cannot expect every country"s sweeping transition of criminal procedure to conform to "globalization and rule of law" under unilateral standards or rationales. Moreover, it should not be surprising that we need a "comparative criminal procedure." Another point that merits mentioning here is that no one will maintain that the practice of criminal procedure in many parts of the world reflects even inadequately upon the efforts of so many decades. However, it is precisely the pains taken to establish and develop detailed standards that, in the course of time, give concrete form to the overall human rights concept in the light of a specific living context and, in this way, set standards for assessing the practice of states. The fact that there is a widely felt need for this is reflected precisely in such efforts from the point of constitutional law.

통신사업자들의 Post ADSL 구축전략 및 가입자 예측

조병선(Cho, Byung-Sun),고중걸(Ko, Joong-Gul) 한국통신학회 2002 한국통신학회 학술대회논문집 Vol.2002 No.7

‘신종’의 뇌물범죄에 대한 한국의 형법적 대처방안에 대한 고찰

조병선(Cho, Byung-Sun) 한국형사법학회 2009 형사법연구 Vol.21 No.4

Whatever the reason for past reluctance about the criminalization of 'new type bribery' and despite difficulties with meaningful evidences on the problem, the control of 'new type bribery' or 'structural corruption' in Korea has become a major topic in criminal policy discussions. Though there is widespread agreement that new type bribery or structural corruption has to be combated without delay and in a suitable way, thus far only limited attempts have been made, mainly in the area of prevention. A significant part of this research consists of examining the existing laws and their interpretations in courts and academic opinions, and the future combating measures to improve the existing laws and theories against new type bribery. Thus, this research comes to conclusion that the introduction of combating measures and other preventive measures should not depend on whether or not corruption has already come to light. Especially criminal law measures is mandated as a last resort by the need to keep business and public administrationn 'clean' and, as a matter of principle, cannot be founded on morality.

긴박한 테러행위와 형사법

조병선(Cho, Byung-Sun) 한국형사정책학회 2012 刑事政策 Vol.24 No.2

Since 9.11 international terrorism has been discussed in the demension of justification and excuse in criminal law. In the meantime, the theory of justification and excuse as a theory applicable against this exceptional cases has not been developed in Korea. In this viewpoint, the legal responses against the attacks against the hijacked aircraft and torture to save a life (Daschner Case in Germany) could be very interesting debates with regard to the theory of justification and excuse in criminal law. In this paper especially the possibility of the scheme of the so-called "defensive emergency (Defensivnotstand)" will be examined. The heated debates in Germany regarding Defensivnotstand will be introduced and their meaning in the future discussion in Korea will be analyzed.

통신사업자의 TV-based VOD 사업의 추진전략 및 전망

조병선(Byung-Sun Cho),황호영(Hoyoung Hwang) 한국통신학회 2004 한국통신학회 학술대회 및 강연회 Vol.2004 No.4