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.

한국형사법학자 김기두의 생애와 학문

문성도(Mun, Seongd-do) 한국형사법학회 2021 刑事法硏究 Vol.33 No.4

2차대전후 대학에 있던 일본인들이 한국에서 일본으로 돌아가서 교수들이 매우 부족하였다. 그러한 상황에서 김기두 교수(1920.08.21.~1993.09.07.)는 제국대학 졸업, 그것도 도쿄제국대 법학부 졸업이라는 당시 엘리트 교육과정을 정상적으로 마치고 법무부 법제관을 거쳐 젊은 나이에 대학 교수가 되었다. 정부 출범 후에도 일본어로 된 일제 법령이 유통되던 시절에, 김기두는 어려운 형편에도 한국 현실에 맞는 한국형법이론을 구축하기 위해 치열하게 살았던 선구적인 한국형법학자이었다. 김기두는 법무부 법무관으로서 미국형사소송법, 남미헌법 등을 번역하였다. 교수가 된 후에도 형사정책 또는 범죄학에 대한 미국 책을 번역 소개하였다. 또한 김기두는 이것을 기반으로 하여 소년범죄 등 한국 형사법학에 대한 연구를 진행하였다. 이것은 그가 일제 강점기에서 공부하였기 때문에 이를 극복하고 새로운 한국 형사법이론을 창출하려는 노력의 출발이었다고 할 것이다. 그는 1955년 7월부터 미국 국무성이 초청하는 교환교수로서 하버드대학에서 글뤽(Scheiden Glueck) 교수 연구실에서 1년간 형사정책, 특히 소년범죄를 연구하였다. 이러한 연구는 1967년 서울대학교에서 “한국 소년범죄 연구”로 법학박사학위를 취득하는 결과로 이어졌다. 김기두는 제1세대 형사소송법학자라 할 만큼 형사소송법에 대한 관심도 많고 연구논문도 많았다. 김기두는 광복 후 한국은 형사재판을 민주화하기 위하여 과거 직권주의를 후퇴시키고 영미의 당사자주의소송절차를 도입하였고 보았다. 그는 형사소송이 직권주의를 탈피하여 당사자주의를 강화하는 방향으로 변화해야 하는데, 그렇지 못한 현실을 개탄하였다. 형사소송법은 피고인의 인권옹호를 중심으로 입법되고 또 해석되어야 한다고 보았다. 또한 김기두는 한국의 형사정책학과 범죄학 연구의 단초를 열었다. 그는 과거의 형법학이 범죄현상에 대한 실증적 연구도 없이 또 범죄인에 대한 구체적 연구도 없이 순(純)관념적으로 또는 형식적으로 입법되었고 해석되어 왔음을 반성하고, 형식논리적 형법학의 타성에서 벗어나 생물학, 생리학, 심리학, 사회학적인 광범한 종합적인 형법학으로 전환되어야 한다고 보고 이에 대한 연구를 한 형사정책학자이었다. 그는 형법과 관련해서도 형법각론 단행본도 있고 51편에 이르는 논문도 발표하였다. 김기두는 실제로 형사실체법, 형사절차법, 형사정책을 다 아우르고 심도있게 연구하였던 형사법학자였다. 오늘에 이르기까지 명실상부한 형사법학자는 그리 많지 않다. 정영석 교수, 배종대 교수 등이 형법, 형사소송법, 형사정책 3분야에 대한 기본서를 발표하였다. 김기두는 형사법학자로서 최초로 경찰수사권 독립을 주장하고 4년제 경찰대학의 설립을 최초로 국회 입법 논의 과정에서 주창하였다. 이 글은 문헌연구를 중심으로 하고, 제자들의 회고담을 참고하였다. After World War II, the Japanese in universities returned from Korea to Japan, and professors were very scarce. In such a situation, Professor Kim Ki-doo (1920.08.21-1993.09.07) completed the elite curriculum of graduating from Imperial University, and even graduated from Tokyo Imperial University s Department of Law, and became a university professor at a young age. In the days when Japanese laws and regulations were circulating even after the inauguration of the government, Kim Ki-doo was a pioneering Korean criminal law scholar who lived fiercely to build a Korean criminal law theory suitable for Korean reality despite difficult circumstances. Kim Ki-du translated the US Criminal Procedure Act and the South American Constitution as legal officers of the Ministry of Justice. Even after becoming a professor, he translated and introduced American books on criminal policy or criminology. In addition, based on this, Kim Ki-du conducted a study on Korean criminal law such as juvenile crime. Since he studied during the Japanese colonial period, it would be said that this was the beginning of an effort to overcome this and create a new Korean criminal law theory. Since July 1955, he has studied criminal policy, especially juvenile crime, for a year at Harvard University s Professor Scheiden Glueck s laboratory as an exchange professor invited by the U.S. State Department. These studies led to the acquisition of a doctorate in law from Seoul National University in 1967 as a Korean Juvenile Crime Study . Kim Ki-doo was interested in criminal procedure law and had many research papers to the extent that he was the first-generation criminal procedure law scholar. After Korea s liberation from Japanese colonial rule, Kim Ki-du saw that in order to democratize criminal trials, Korea retreated ex officio in the past and introduced a British-American party litigation procedure. He lamented the reality that criminal proceedings should change in the direction of strengthening partyism by breaking away from ex officio. It was considered that the Criminal Procedure Act should be legislated and interpreted centering on the protection of the Defendant s human rights. In addition, Kim Ki-doo opened the foundation for the study of criminal policy and criminology in Korea. He was a criminal policy scholar who studied criminal law in the past, reflecting that it had been purely ideologically or formally legislated and interpreted without empirical research on criminal phenomena and that it should be transformed into a broad range of criminal law in biology, physiology, psychology, and sociology. Regarding the criminal law, he also published a book on criminal law and 51 papers. Kim Ki-doo was actually a criminal justice scholar who studied criminal substance law, criminal procedure law, and criminal policy in depth. Until today, there are not many criminal jurists in name and reality. Professor Chung Young-seok and Professor Bae Jong-dae published basic documents on the three areas of criminal law, criminal procedure law, and criminal policy. Kim Ki-doo was the first criminal jurist to insist on the independence of police investigation rights and advocated the establishment of a four-year police university in the course of legislative discussions in the National Assembly for the first time. This article focuses on literature research and refers to the retrospectives of the disciples.

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.

형법 제34조 제2항의 법적 성질

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

집회,시위 현장에 대한 경찰 출입의 법적 문제와 합리적 개정방안

문성도 ( Seong Do Mun ) 한국경찰법학회 2008 경찰법연구 Vol.6 No.2

Recently in Korea it is passionately disputed regarding freedom of assembly whether a policeman in civilian clothes can enter a gathering or demonstration place in view of Korean Assembly-Demonstration Code which says ‘a policeman can enter a gathering or demonstration place in a full-dress uniform, after notifying the promotor of an assembly and a demonstration’(§19).This paragraph 1 of Article 19 of Korean Assembly-Demonstration Code can be interpreted variously. According to the restrictive interpretation of §19 ①, a policeman in civilian clothes may not enter a gathering or demonstration place. From the interpretation a contrario of §19 ①, a policeman in civilian clothes can enter a gathering or demonstration place without serving a notice to the promoter of an assembly and a demonstration. From the interpretation a fortiori of §17 ①, a policeman in civilian clothes can enter a gathering or demonstration place, if he serves a notice to the promotor of an assembly and a demonstration. This issue brings several reform bills of Korean Assembly- Demonstration Code. These bills may be classified as follows; - One bill① crosses words of ‘in a full-dress uniform’ out in the paragraph 1 of Article 19. - Another bill② rescinds the paragraph 1 of Article 19. - Other 4 bills③ make that problem clear by saying that `a policeman shall enter a gathering or demonstration place in a full-dress uniform. The second chapter explains about the bill①, and the third chapter reviews the bills③. The fourth chapter explains and reviews the bill②. The bill② seems to solve this problem according to Police-Duty-Enforcing Code, but actually brings many difficult legal problem. Some labor agitators or leaders assume a critical attitude toward the bill①. They think if a policeman enters a gathering or demonstration place in a civilian clothes, he keeps close watch on the people in gathering place like Stalin`s secret police, and freedom of assembly must be violated. According to the bills③ a policeman in civilian clothes may not enter a gathering or demonstration place. Some bills make a policeman mark his rank and name in addition. However, People who submit or support the bills③ don`t understand or make little of why legislators of Korean Assembly-Demonstration Code allow a policeman to enter a gathering or demonstration place. When a peaceful demonstration takes a sudden turn for the worse or riot, an isolated policeman shall not be left behind defenseless or naked. So, I support the bill that a policeman in civilian clothes or a full-dress uniform can enter a gathering or demonstration place, if he serves a notice to the promotor of an assembly and a demonstration.

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