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        • KCI등재

          형사재판에의 범죄피해자 참가제도 입법화방안

          박광섭(Park Kwang-Sub), 도중진(Toh Joong-Jin) 전북대학교 법학연구소 2016 法學硏究 Vol.47 No.-

          우리나라 형사절차에서 범죄피해자는 현행법상 형사절차의 당사자 또는 주체로 형사절차에 참가할 권리보장이 선진 외국에 비하여 아직 미흡한 수준이기 때문에 형사절차에서 피해자 참가의 실효화 방안을 통하여 피해자 중심적 형사사법절차의 실천을 모색할 필요가 있다. 이에 본 연구에서는 피해자 참가제도를 시행하고 있는 독일, 일본 등 주요국에 있어서의 피해자 참가제도를 분석 · 고찰하고, 현행법상 범죄피해자 권익보호와 지위강화제도로서 도입논의가 활발히 전개되고 있는 피해자의 소송참가제도를 심도있게 분석⋅고찰하여 현실적으로 활용가능한 범위 내에서 형사소송법개정안의 문제점과 바람직한 입법화방안을 제시하고자 하였다. Recent trends in Victimology of the country's view to the crime victims, as an axis of the criminal legal system, public authorities-criminal-victim continues to establish a three-dimensional structure of a triangular relationship. Nevertheless, victim is still a crime victim in criminal proceedings, including in position as a witness and a situation that could not be recognized the independent status of criminal proceedings can be seen in developed countries. That is advanced in terms that should guarantee the right to participate in criminal proceedings as a party or the subject of a criminal guaranteed only formal participation in the judicial process and can not be guaranteed and the actual participation as well as criminal proceedings for the only victims of crime provisions of the current law, there is a need to explore the practice of victim -oriented criminal justice process through the participation of victims in criminal proceedings plans. Under above-mentioned recognition, this study will seek to enact measures of victim participation in the criminal system. To do this, I would analyze German and Japan's victim participation system and investigation in the current law on the crime victim advocacy and status, especially with the view of analyzing deeply the lawsuit participating institutions of the victims. After exploring the implications of the country, I also suggest the issues of the victim participation system in 2011, the Department of Justice's Criminal Procedure Act amendment and enact measures through a review. In the amendment acknowledges the participation of the lawyers received a delegation of participants. Therefore, the Criminal Procedure Act may be that laid the basis of the provisions in either the victim's lawyer system. But the victim or victims of participants, when they are poor or in special situation, it does not prepare the rules for public defender system that can give an attorney claims.

        • KCI등재

          형사사법절차에의 범죄피해자 참여제도 실효화 방안

          도중진(Toh, Joong-Jin), 박광섭(Park, Kwang-Sub) 한국피해자학회 2013 被害者學硏究 Vol.21 No.2

          '스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 7시까지 원문보기가 가능합니다.

          It has been discussed that the Victim, excluded as bystander or the forgotten in criminal justice, could be treated the subject or could participate in the criminal justice. This phenomenon means that guarantee of human rights in crime victim, restoration of the loss, finding of substantial truths and so on are estimated as criminal policy's change in paradigm. In Korea's criminal justice system, to guarantee the victim's participation in criminal process, the right of accusation, demand of judgement, the right of to be informed, victim statement of opinion are acknowledged, but the victim are still treated the object of the criminal justice, not the party of criminal justice, not a subject of criminal justice. Victim's participation in criminal justice in U.S.A., Germany and Japan is acknowledged from police investigation, criminal trial to execution of punishment by means of Private Accusation, Conference of Prosecutor, Subsidiary Prosecution, Victim's Participation, Victim Attorney, Victim Statement of Opinion on Probation and so on. To compare the countries' systems mentioned above and Korea's, victim in criminal justice system is not still enough existence as a subject in criminal process but a bystander. It is very important that conversion of awareness on victim of investigation authorities, judge, attorney, and effort of legislation for victim's substantial participation in criminal justice. To begin with, I suggest the actual remedies for victim's participation in criminal justice. First, the right of to be informed, a basic premise for victim's participation in criminal process, should be the compulsory statutes in all criminal justice authorities, and Criminal Procedure Law should be revised to verify contents of investigation and objects of investigation. Second, to guarantee aggressively the victim's participation in criminal process, some institutional equipment should be ready that victim statement in independent process and written statement, statement by authorities rights, reorganization of limitations of victim statement, victim statement on suspension of execution of custody, victim statement of opinion on probation. Third, as a premise to guarantee the victim's participation, it should be considered that all the regulations for victim's information and affairs should be regulated in criminal procedure law. Or statement attorney vitalization and sitting with relier should be strengthen. Fourth, Victim-Offender Mediation or Criminal Reconciliation accorded with Restorative Justice should be introduced. Korean criminal justice has the restorative justice before the trial or Compensation Order, but does not explain sufficiently the effects of victim-offender mediation or criminal reconciliation. So, Criminal Procedure Law needs to be revised by means of reducing the punishments or halting the criminal process when victim-offender mediation or criminal reconciliation comes into existence. Fifth, Victim's Participation in criminal process should be introduced, reconsidering the revised bills. Victim's participation should include the indictment after demand of judgement, and revise the participation process that prosecutors are leading, and reorganize the right of victim. Sixth, victim attorney should be introduced to make the victim assisted through criminal process, and court-appointed lawyer, which is carried narrowly, should be widened in all criminal process. Seventh, object of interrogation of a witness needs to be limited to make the victim participating actively in criminal process.

        • [형사특별법 정비방안(18)] 통일대비 북한 형사법령 통합방안 예비연구

          도중진(Toh Joong-Jin), 조훈(Jo Hoon), 박광섭(Park Kwang-Sub) 한국형사정책연구원 2008 형사정책연구원 연구총서 Vol.2008 No.12

          In modern society, either the governments or the groups that have different social systems should have integration of legal orders at integration to be very much important. This is because politics, society, economy and culture and other areas cannot be completely integrated without integration and maintenance of legal orders. Therefore, unification and legal integration of Germany, in particular, integration of criminal laws has set a good example for Korea. Since the Kim Dae-jung Regime took power in Korea, the Korean Government adopted a policy to improve relations between both Korea by peace, reconciliation and cooperation, and it has strongly promoted the policy based on separation between the politics and the economy and between the government and private business to reinforce reconciliation and cooperation between both Korea and to revitalize information exchange and cooperation greatly each other and to enter new stage that seeks for development and unification together. Not only North-South relations but also unification environment has made change so that integration of laws and systems can unify the Korean Peninsula finally. The purpose of the study is to prepare for problems preventing integration of the Criminal Act at the unification and to examine the Criminal Act of North Korea to solve legal problems that may occur at information exchange and cooperation between both Korea. Chapter 2 has investigated not only 2004 revision of the Criminal Act of North Korea but also the Act before revision from objective point of view to examine contents and problems of the revision comprehensively. Chapter 3 has described merge of laws and regulations of the Criminal Act of East Germany into the ones of West Germany after unification to accept experience and lessons of Germany critically regarding integration of the Criminal Act: And, the chapter has investigated contents and characteristics of the Criminal Act of East Germany, merge process and problems of the Criminal Act after unification and problems of the integrated Criminal Act of both Germany. Chapter 4 investigated cases of the criminal acts between China and Taiwan of the Taiwanese Government before revision of laws and regulations of relations between both countries to examine punishment of criminal cases. And, the chapter has investigated laws and regulations of both China and Taiwan that regulate relations of residents at the level of mutual cooperation and information exchange regarding punishment of criminal cases of both countries, for instance, prosecution and exempted punishment of bigamy and adultery cases in accordance with basic principles of criminal cases, and prosecution and exempted punishment of the ones in mainland China who have committed crimes of rebellion and foreign exchange regulation. Chapter 5 has investigated punishment of criminal cases to guarantee personal safety between both Korea. Both Korea are demanded to admit of the realities that both countries reject national authority each other and to start exchange between both countries from internal relations of the Korean people and to make comprehensive agreement of personal safety that includes scope of criminal jurisdiction, joint inspection system and joint justice organizations, etc, and permanently stationed representative in North Korea and South Korea. Chapter 6 has summarized contents above to compare integrated criminal laws and regulations of North Korea in preparation for unification of the Korean Peninsula with the case of Germany.

        • KCI등재

          범죄수익 몰수자산기금 도입방안

          도중진(Toh Joong-Jin), 박광섭(Park Kwang-Sub) 한국형사정책연구원 2007 형사정책연구 Vol.71 No.-

          우리나라에서는 1988년 12월에 채택된 ‘마약및향정신성약물의불법거래방지에관한유엔협약(Unaited Nations Convention against Illicit Traffics in Narcotic Drugs and Psychotropic Substances)'에 의거하여 ‘마약류불법거래방지에관한특례법' 및 ‘범죄수익은닉의규제및처벌 등에관한법률'이 시행됨에 따라, 특히 약물범죄 및 조직범죄, 자금세탁범죄의 대책으로서 새로운 유형의 몰수?추징제도가 도입되었다. 우리나라 ‘범죄수익규제법'의 입법목적이 ‘특정범죄와 관련된 범죄수익의 몰수 및 추징에 관한 특례를 규정함으로써 특정범죄를 조장하는 경제적 요인을 근원적으로 제거하여' 건전한 사회질서유지기능을 충실히 하려는 것이라는 점을 감안할 때, 자금세탁방지법규의 몰수제도에 의해 몰수 내지는 추징한 재산의 효과적인 운용을 통하여 법집행기관이 의욕을 가지고 자금세탁방지업무를 수행할 수 있도록 강구함과 동시에 법무부, 재경부 금융정보분석원, 기획예산처, 식품의약품안전청 등 제 관련기관의 제 활동을 위한 재원을 확보할 수 있는 법적 근거를 마련할 필요가 있다 할 것이다. 따라서 이 논문은 각국의 제도와 운용실태를 비교?분석하여 우리나라에 적합한 몰수자산 운용방안을 모색함으로써 효과적인 몰수자산 운용제도에 관한 도입방안을 도출하고자 하였다. In December 1988, the UN resolved the bills on illicit traffics in narcotic drugs and psychotropic substances in order that illegal profits from drugs and money laundry could not be the sources or motives to commit irregularities any more. This implies the needs of ban on all kinds of benefits from crimes in justice systems. Korea just came to recognize the necessity of controls on these issues and made specific statutes related on drugs and psychotropic substances. Before these efforts, however, seizure and forfeiture exit only in korean criminal law. So. illegal properties could be hided and kept anywhere despite of judgement of conviction. As shown above, UN Convention is not simply a 'declaration' but a 'manifestation of justified enforcement' on the illegal properties through crimes to prevent the narcotic crimes, organized crimes, money laundry, and became a big issue all around the world. We can easily understand why many a criminal would like to seek the financial benefits in spite of strict regulations about crimes, and, sometimes it is successful in reality, if we look around the genuine motives, 'properties'. Profits from crimes, e.g. narcotic crimes, organized crimes, money laundry and so on, can be used easily not only to keep and enrich the criminal syndicate, but to make themselves legal economic bodies, to avoid the chase of investigation authorities, to invest the legal business or illegal business. Issues concerning crimes and money have been discussed in terms of criminal justice policy. But we cannot end the connections yet. First, to remove the involvement of illegal money and crime, it is needed strongly that all crimes should not pay any more and all criminals can not even imagine the properties from above crimes. Second, fair distribution of benefits and burdens should be restored. The FATF advises with 40 recommendations that all the nation should seize and forfeit properties from money laundry, profits from money laundry, instruments which is used money laundry or will be used, or same benefits to these properties, should legislate the same as UN Conventions, and should establish the 'Asset Forfeiture Fund' which is going to be used to law enforcement, health, education and proper purposes. And these advices of FATF also provide that concrete or abstract properties from crimes and modification of these properties or increase of these properties should be seized and be used as a fund for suppression, protection, rehabilitation with seized properties and their profits. Korea has a seizure and forfeiture system from the crimes and regulations on criminal profits, illegal properties, but considerable amount of profits belongs straight to national treasury and profits can be useless to prevent the above crimes, nevertheless the UN Convention and the FATF, because of lack of disposition of the statutes. In US, 'The Comprehensive Forfeiture Act of 1984' approve the criminal profits from drug crimes and the use of drug investigation agency and FBI through civil forfeiture, and that the department of justice can establish the Fund and use the Fund for seizure and forfeiture, the cost of investigation, the cost of execution(the cost of criminal case, therapy for addict of drugs, protection and rehabilitation, the cost of prison construction). Therefore, the focus of this study is to analyze the forfeiture systems regarding the criminal justice and to reflect on the limit under current legal systems and to consider necessity of the UN Convention at the same time. This study will also deliberate the statutes of other countries, U.S., Canada, Australia, U.K., Thailand and their system of practice, to reckon the possibility of introduction of asset forfeiture system in korean justice system.

        • 민영교도소에 관한 고찰

          박광섭(Kwang-Sub Park) 충남대학교 법학연구소 2001 法學硏究 Vol.12 No.1

          Private prison, as a prison that a juridical person or a private who is given the correction duty from the minister of justice manages, is one of special correction systems being performed in countries recently advanced in correction. Recognizing that there is an obstacle in establishing a reasonable correction administration because in the government-oriented correction administration of the past, uneconomic, inefficient element is included, our country is also preparing for the opening of private prison in 2003 year to make a more efficient correction reform. I reviewed private prisons of the Unites State, the England, the Australia, the Brazil because it is necessary to review private prisons of countries advanced in correction for the efficient management in our country. Through this study, I confirmed that private prison can be an alternative trial that can complement public prison. Even though the problem about the introduction of private prison is pointed out, that problem can be common for it can also come from the management of the public prison. Therefore, the Private management of correction should be done with the intention of improving the efficiency of correction of prisoners rather than with the purpose of curtailing the expenses by consigning the operation cost to a private person.

        • 형법에 있어서 피해자측면에 관한 연구

          박광섭(Kwang-Sub Park) 충남대학교 법학연구소 2007 法學硏究 Vol.18 No.1

          The problems how crime victims can be protected in criminal justice has been a important issue in criminal justice in korea since the victimology showed up. Specially, former victimology that would seek causes of crime from innocent victims is now making an important role to protect the rights of the victim, to keep the protection system in criminal law. More over, this victimology becomes a new paradigm in criminal justice in protection of victim's right and supporting victims. In recent processes, there are also the introduction of victim compensation for their constitutional rights, the introduction of victim-offender reconciliation for the restorative justice. On the other hand, the problems on the victim in criminology does not discuss in criminal justice because of the interpretation on the completion of crime. How victim's condition can be understood in criminal justice and sentence in criminal justice is very important problems. This essay would like to focus the view of crime victims in criminal laws and in the course of interpretation of criminal law.

        • 조례에의 형벌도입을 위한 입법론적 고찰

          박광섭(Kwang-sub Park), 김혁(Hyeok Kim) 충남대학교 법학연구소 2005 法學硏究 Vol.16 No.1

          The scope of ordinance legislation has been restricted due to the principle of unifying the government. The problem with this limitation of legislative power of local councils is becoming more important in an area of law theory and its practice. In a reality, it is true that the actual effectiveness of ordinance is becoming weak, and just the formal ordinance remains. Especially, local government just receives a fine by means of guaranteeing the formal administrative efficiency. Not only the problem of sentencing but also the high rate of nonpayment violate the constitutional ideology, and destroy the local government's power. Furthermore, it makes the government not to perform effectively the policy of citizens' welfare and public security. Also, the local government cannot prevent the increase of harmful facilities for juveniles. Because of the introduction of local police system and the increase of regulating work, local government has been burdened in the local administration. It needs a reevaluation of the Article 15- the principle of 20 of local autonomy act. In order to improve citizen welfare and public security in the local area, it is necessary for the government to have a right to enact the punishment within the restricted scope. Through the extension of ordinance legislation, local government has the practical efficiency of administration. In conclusion, local government must have its own legislative power for the punishment in order to correct the problems which the central government cannot respond quickly.

        • 기업범죄에 관한 연구

          朴光燮(Kwang-Sub Park) 충남대학교 법학연구소 2003 法學硏究 Vol.14 No.1

          During the changing of humans social and economic activity, dangerous elements, which were made by corporations or the organization of corporations have threatened the human society for long time. Especially in the case of Korea, since the 1970s, while it had obtained the positive results of economic development due to the policy of focusing on the developing economy, the negative aspects, which are illegal conditions, related to corporations had emerged. Due to these illegal situations, the government and society have had difficulties. Therefore, society needs more effective laws in order to regulate the crimes of corporations because not only there is a huge amount of damage to society but also citizens become the victims of corporation crime. However, we have to recognize that there are a lot of problems in regulating the crimes of companies in the point of theory and way of legislation, because the current administrative or criminal punishments are unfair due to the characteristics of the corporation crime itself. Thus, in order to make effective, reasonable policies which regulate the crimes of corporations, first of all, I will define corporation crime and then compare and research similar crimes such as White Crime, Property Crime, and Economic Crime. Then, after discussing the characteristics, such as the difficulties of definition of actor, the tendency of these crimes to be related to authority, commercialism, imitation, relation to each other, intelligence, specialty, concealment, the degree of damage and so on, I classified the types of corporation crime based on act, victim, and scope of act. Additionally, I believe that the following topics in corporation crime must be evaluated in order to seek the effective policy which regulates the crime of corporation. First of all, we have to study about the ways corporations are punished. Especially in terms of criminal punishment, there needs to be more attention not only because until now it has not been determined whether corporations have the capability to commit crime or not, but also because there are no unified opinions, which would create a reasonable ground for the dual-punishment of corporations through both criminal and administrative means. Second, it is necessary to consider the sentencing process because there have been arguments for a long time that the courts sentencing, involving penalties which restrict the right of bodily freedom in corporation crime, is inappropriate compared to a general human beings crime. In addition, the damage of corporation crime is so huge to our society that we have to reconsider sentencing of corporation crime offenders. Also, the effectiveness of the penalties of fine and confiscation need to be reevaluated. Finally, we have to consider more effective punishments such as probation, suspension of business, and social service to properly deal with the crime of corporations. Especially, I think that our society has to manage the corporation crimes more effectively by installing a special organization to handle corporation crime.

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