자살관여행위의 가벌성 근거 : The Basis of Punishability for Suicide Participation

박무원(Park, Moo-Won) 韓國刑事法學會 2011 刑事法硏究 Vol.23 No.1

The core of the problem of the crime of aiding and abetting suicide(§252②, Criminal Law) is a rational explanation for the basis of punishability for suicide participation and its commencement of the commission from premises that suicide participation is provided in the same article with murder upon request and homicide with consent and it has same statutory penalty. Although it is the predominant view that suicide participation is a separate principal offense type in spite of the act patterns of committing abetment and assist, actual profit of distinction suicide participation that is provided in the form of accomplice from murder upon request in the form of principal is not inconsiderable. Even though suicide participation is punishable enough by being prepared its special constituent requisite, the dependency of accomplice shall not be disregarded for the reasons of act of committing in the accomplice form of abetting and assist. In many cases, the legality theory of suicide or the legal free zone theory of suicide is supported by the independent crime theory of suicide, but we shall not regard disposal of life as legal conduct or evaluation-suspended conduct. Because the interest of respect for each individual's self-determination right should not accomplished in the matter of life disposal that means destruction of each individual. In the concern of life disposal, both of the right self-determination(autonomy) and life(existence) are violated in homicide, but only life(existence) is violated in the crimes of homicide with consent. Such difference between these two types of crime is the base of reduction illegality and punishment of homicide with consent and suicide participation against homicide. Suicide is illegal misconduct although it has committed on one's responsibility. Because blocking commitment of suicide is completely legal and adequate behavior without composing violence whether suicide is self-answerable or not.

사이버 폭력에 대한 형법적 대응

박무원 ( Moo Won Park ) 안암법학회 2011 안암 법학 Vol.0 No.35

Cyber violence is verbal abuse or expression crime that violates personal rights in cyber space. The personal rights of victim can not be inferior to the dissolute freedom of harmful information sender who lead to cyber violence. There is no reason to protect perpetrator who makes an irresponsible comments through expression media of strong diffusion, more heavily than unliable victim. The improvement of criminal measures against cyber violence may be summarized as follows: We don`t have to design cyber insult as a independent constituent requisite, because of ① mismatch of the system of constituent requisite, ② lack of justification for additional punishment, ③ possibility of flexible reaction through established contempt, ④ concern about abuse of political power. Because cyber libel is an ordinary crime in these days which cyber culture is becoming more common, it should be fixed by the articles of basic criminal law to further raise the function of general prevention and standard of conduct. In regard to cyber sexual harassment, there is no vacuum of punishment because the offender is punished for an obscene act through telecommunication media against article 12 in the Act of Punishment for Sexual Violence. But it is necessary to adjust its statutory penalty, compared with cyberstalkiog of article 44-7(1) in the .Act of Information and Telecommunication. In regard to cyberstalkiog, it is necessary to be fixed by the articles of basic criminal law or special law with off line stalking. Also should be aggravated punishment applied to child or juvenile stalking. Cyber obscene material in the Act of Information and Telecom- munication should be admitted into article 243 of promulgation of obscene materials in the Criminal Law. Also should be aggravated punishment applied to child or juvenile cyber sexual exploitations. In order to protect children and juveniles from sex trafficking. most effective measure is law enforcement agency should intervene the course of purchasing child or juvenile`s sexuality, and block sexual trade in advance

긴급구조의무와 나쁜 사마리아인법

박무원 ( Moo Won Park ) 한국비교형사법학회 2010 비교형사법연구 Vol.12 No.1

The bases of criticism that the bad samaritan law which enforces to perform the duty to rescue in emergency situations by punishment is unacceptable by the reason of moralization of criminal law include the restriction of freedom of attitude by order, the clear-cut distinction of between law and moral, the ambiguity of positive duties etc. It is only decided between positive and passive duties whether the restriction of freedom is within the minimum or not. It is impossible to judge whether the restriction itself within the minimum or not, and impossible to judge by the discrimination between prohibition and order. Positive duty also could not excluded from legal duty even if positive duties is much more in the degree of restriction of freedom than passive duties and they usually belong to moral duty. Because such a restriction is fundamentally necessary for the existence of liberal society and the discrimination between law and moral changes according to time and society. Also against the criticism of the ambiguity of positive duty, for example, being the duty of solidarity restricted to accident cases or dangerous situations, the range of behavior discretion of each individual in the positive duty to rescue becomes narrow. The general duty to rescue of the bad Samaritan law is given to the one only who recognize an accident and is in a position to rescue the victim.

[논문]베를리오즈의 음악미학적 비평과 작품분석 연구

박무원(Moo-won Park) 낭만음악사 2005 낭만음악 Vol.- No.68

본고는 음악적 낭만주의를 도식화하는 것과 낭만주의는 영원한 범주라는 일반적인 접근 방법이 편중된 미학적 경향이라고 보고, 베를리오즈의 작품에 나타난 낭만주의적 미의식을 음악미학적으로 비평하였다.<br/> 낭만주의 음악미학 접근 방법의 하나는 특정 작곡가의 작품과 관념에 대하여 미학적인 비평을 하는 것이다. 따라서 그 작곡가의 예술과 철학노선으로의 투쟁, 그리고 음악 미학의 근본 문제에 대한 미학철학의 의미를 축소하거나 무시하지 않고 작품과 관련하여 언급하였다.<br/> 또한 이 글에서는, 음악미학적 이념과 그것이 음악학 분야에 끼친 영향을 음악작품의 내용과 사회적 근원과 관련하여 다루었다. 특히, 베를리오즈가 음악미학자이며 음악비평가로서 음악미학적으로 접근한 비평방법 및 음악작품의 창작방법을 통한 문학적 특성과 그가 추구한 목표 등을 본질적 판단의 측면에서 언급하였다, 음악미학과 관계된 양식 특성과 그의 음악에 대한 미학적 비평을 예술적이고 이성적 직관에 의한 음악적인 사고로 비평한 여러 작곡가의 견해들을 음악미학적 측면에서 논의하였다. When we talk about the aesthetic conception of music, too much is made of symbolic and philosophical ideas rather than the aesthetic conception. Aside from philosophical considerations, we also need to consider how musical esthetic is related to the composer in the act of composition: his reasoning, spin-offs from his mental attitude, based on the political, social and cultural background. We need to study and compare the aspects above to broaden music education.<br/> This article deals with Berlioz's musical world. He was a symphony composer in France and a creator of Program Music, which was a characteristic new musical form in a dramatic, orchestral style. Aside from being simply a composer, he was also an instrumentationalist and a well-known writer like Wagner. For the most part, the study of Berlioz has relied on his historical reception. However, in this article, I want to discuss Berlioz (who was a musical aesthetician and a critic) from the aspect of his aesthetic criticism and the aesthetic propensity of his work, and from an analysis of his views on musical aesthetics a field of study which is not accessed by many people.<br/> Berlioz was a composer who invented a new musical genre called Program Music, and at the same time a critic and conductor. Program Music belongs to musical drama, which is the combination of classical music, which can be described as an absolute music because of its perfect formal beauty, and literary factors. In instrumentation, it breaks new ground and attempts a new, dramatic expressivity in the orchestra describing a story with music, leading characters can be indicated by a motif (a melody of delicate emotion composed with specific musical intervals), or a theme. In Berlioz's musical aesthetic, music is not only a matter of form but also a matter of accessing romantic fantasy. Berlioz's technique developed as a lead-motive later in Wagner's time, and became the main reason for the development of the organic process of composition. If we grasp the artistic meaning of music and, at the same time, the form and artistry of compositional technique, not only can we feel the real beauty of the music but we can also express the meaning of a musical performance and develop a more concrete, creative and aesthetic appreciation. Many people have a very conservative perspective in understanding and learning music, but that is because they understand it superficially with symbolic conceptions only. If the musical aesthetic is recognized in music, not only can we have the abundance of music's historical knowledge, but also we can grow in powers of intuition for moral and emotional personal development.<br/> Berlioz concluded that while Painting has no other purpose than the accurate imitation of nature, Music is a "unique art". In other words, music is itself a tool of unique character, giving impression without the aid of any form of imitation, and suggesting that a physical(direct) description should be an instrument, not an object.<br/> He insisted that music mustn't simply copy nature, yet at the same time it should be very accurate, so that an audience listening carefully might understand the composer’s intention, and so that music's interpretation might never be decided by emotion alone. He expressed disagreement with the idea of naturalistic intuition of representation in his musical aesthetic view. This was in accord with the romantic aesthetic: expression of emotion and passion is in the centre and the expression of concept equates to the conception of the musical form. Therefore, his contribution in music history developed with a new genre called "Program Music".

미국의 사이버스토킹에 대한 형사적 규제 상황

박무원 ( Moo Won Park ) 한국비교형사법학회 2011 비교형사법연구 Vol.13 No.1

Cyberstalking is when someone uses the Internet or other electronic means to stalk or harass an individual, a group of individuals, or an organization. It may include false accusations, monitoring, making threats, identity theft, damage to data or equipment, the solicitation of minors for sex, or gathering information in order to harass. Cyberstalking is much like normal stalking, except that the stalkers identity can be hidden. Stalking is a continuous process, consisting of a series of actions, each of which may be entirely legal in itself. Cyberstalkers may send repeated threats directly, or program their messaging system to send their victims at regular intervals. The definition of harassment must meet the criterion that a reasonable person, in possession of the same information, would regard it as sufficient to cause another reasonable person distress. The first U.S. cyberstalking law went into effect in 1999 in California. Other states include prohibition against cyberstalking in their harassment or stalking legislation. Cyberstalking has also been addressed in recent U.S. federal law. For example, the Violence Against Women Act, passed in 2000, made cyberstalking a part of the federal interstate stalking statute. Still, there remains a lack of legislation at the federal level to specifically address cyberstalking, leaving the majority of legislative prohibitions against cyberstalking at the state level. Clear federal and state laws which specifically prohibit cyberstalking may address encouraging others or impersonating the victim to harass her or him. Online identity stealth blurs the line on infringement of the rights of would-be victims to identify their perpetrators. There is a debate on how internet use can be traced without infringing on protected civil liberties. As technology changes, so should the laws. The stalking and harassment laws should be reviewed to ensure that they are adequate to address the new crime of cyberstalking.

논문 : 유럽의 음악임상치료 효과에 나타난 다양한 양상: 독일과 오스트리아를 중심으로

박무원 ( Moo Won Park ) 세계음악학회 2005 음악과 문화 Vol.13 No.-

위난상황에서 개인의 자유와 구조의무

박무원(Park, Moo-Won) 한국형사법학회 2010 刑事法硏究 Vol.22 No.2

Each Individual in a society is human beings of haecceity(independence) and sociality(solidarity) that is sublated both extremes of individualism and totalism. Each Individual is not deified and a society is not absolutized under the political system that is supported by interdependent and mutually beneficial relationship between individual and society. Therefore each individual should be respected by a society and the society must be restricted for each individual's freedom. But also must be each individual related to a society and restricted by the society. The bad samaritan law being fixed by criminal law, one of legal methods for the realization of individuals in society and a society for individuals without being damaged this double-sidedness of human beings of independent and social being, is confirmation that the realization of social integration is an important condition for self-realization. Assuming that the chances of being beneficiary are not much smaller than those of being the one who must give aid, bad samaritan law is clearly in mutual interests between individuals and society.