공원범죄의 피해방지를 위한 합리적인 방안

박찬걸(Park, Chan-Keol) 한국피해자학회 2012 被害者學硏究 Vol.20 No.2

Before constructing parks, it's necessary to formulate plans in the direction of preventing crimes in advance, and follow-up management must be done after constructing the parks completely. If citizens are reluctant to use the parks because public safety is not guaranteed, the reason for being disappears. If the parks do not protect citizens from crimes, it would rather not exist than do harm to them. Rather, it is good policy. In this respect, the current system must be improved, which has no manual for crime prevention being confined to policy of increasing the number of parks. Through the government's expressing its firm will to secure public safety of parks by enacting clear provisions so that the original good will is not distorted to make resting places for citizens, a recognition that illegal acts which make others anxious are punished necessarily must be instilled into park users while taking a sound rest is protected thoroughly. In addition, the police should do the patrols actively in order to prevent crimes in the parks and try to increase street lamps and security CCTV installation in collaboration with the agencies concerned including gu offices. However, it can be said the most important thing to prevent damage of the crimes in the parks is the very civic consciousness. We should keep it in mind that along with continuous efforts by the police and public organizations, a sense of ownership that 'I am the owner of the park' and mature civic consciousness to ‘care for the park like my house’ will make the parks safe without crimes.

공법 : 특정 성범죄자의 신상정보 활용제도의 문제점과 개선방안 -성범죄자 등록,고지,공개제도를 중심으로-

박찬걸 ( Chan Keol Park ) 한양대학교 법학연구소 2010 법학논총 Vol.27 No.4

Juvenile sex protection law recently amended releases through the Internet detailed information of sexual offenders(name, age, physical characteristics, photo, address) unlike the past releasing method. The Court determined to disclose of personal information on the sexual criminals for youth and notify their identities such as name, birth date, occupation, address(city, county and district) and crimes that have committed on the Ministry of Gender Equality and Family`s homepage. The National Assembly passed revised law related to prevention of sex offence against juvenile; revised law to strengthen the registration of sex offenders, to introduce the notification of sex offenders etc. But the present sanction to the sex offender is not enough to prevent the offence. So nationwide notification method must be amended in order not to violate the privacy of offenders and their family and we should devise a better system for the protection of human rights. Finally In order to prevent sexual exploitations and violences against juveniles, what is needed for diminishing sex offences is not to make new sort of treatment or sentence heavier punishment but to supplement the current system by making the analysis process more efficient.

보호처분의 결정 등에 대한 항고권자에 검사 또는 피해자 등을 포함시키지 않는 것의 타당성 여부 - 헌법재판소 2012. 7. 26. 선고 2011헌마232 결정을 중심으로 -

박찬걸 ( Park Chan-keol ) 한국소년정책학회 2013 소년보호연구 Vol.21 No.-

The appeal in the juvenile law is corresponding to one kind of procedure to get relief by an appeal of dissatisfaction with the not yet decided decision to the higher court as meaning the dissatisfaction with the trial and the disposition of the juvenile protection case conducted by the juvenile department of the family court or the single judge of the juvenile department belonged to the district juvenile court under the jurisdiction of the place of an act, the dwelling place or the present address of a juvenile delinquent. There is a difference between the decision specified in the article 43 which has the character of final judgment in fact in this regard while the general appeal namely is intended for before end of trial in connection with the procedural matters in the course getting to the judgment; it may be judged that as a result the character of dissatisfaction with the final trial in the appeal of the juvenile law is relatively strong compared to the general appeal. If it is appraised like this, the necessity to allow the appeal in principle arises, it would not place a limit upon the person who can file of an appeal like the criminal procedure. However, the Constitutional Court is presenting the legal opinion (4 persons) to the effect that the prosecutor or the victim, etc. is not included in the appellant in juvenile law is not in contrast to the principle of Constitution through the object decision. The concurring opinion (1 person) and the incompatible opinion with the constitution (3 persons) on this express the opinion that the current law reducing the range of appellant is necessary to be improved legislatively. It is judged the situation is that the question if it is valid for the prosecutor or the victim, etc. to be included in the appellant in the juvenile law indeed is not wiped out still, in the midst of confrontation with opinions tensely for whether or not of unconstitutionality for the corresponding regulations among total 8 judges involved in the constitutional appeal for the article 43 like the object decision. This study, based on the point at issue, is intended to draw the conclusion to the effect that the prosecutor or the victim, etc. shall be included in the appellant is valid for the purpose of presenting the additional reason for an argument with the parts not appeared in the concurring opinion and the incompatible opinion with the constitution as the center out of decision of the Constitutional Court.

형법상 형사미성년자 연령 설정과 소년법상 소년보호처분제도와의 관계

박찬걸 ( Park Chan-keol ) 한국소년정책학회 2013 소년보호연구 Vol.22 No.-

Various comprehensive measures to root out the school violence are presented as the accidents of school violence occurring successively have been emerged as a serious social problem, inter alia, an argument to lower the criminal liability age is appeared as one of measures to strongly counteract the school violence committed by elementary students or low grade of middle school students. This discussion is a new phenomenon which has not been seen even in the near past, and is thought to have started from the question that the age of criminal minor in current criminal law should be reviewed to be lowered due to lowering the age, getting more outrageous and increasing the second conviction rate of juvenile crime. However, just to increase the criminal punishment through lowering the age of criminal minor is not the best one out of effective measures according to characteristics of the recent juvenile crimes, but to consider the measures to diversify and vitalize the protective disposition system for juvenile offenders in educational aspects seems to be more suitable. Especially, the grounds for argument to be acknowledge such as ① the speed of mental and physical growth of juvenile, ② lowering the age of juvenile crime, ③ getting outrageous of juvenile crime, ④ the correlation and unbalance between lowering the age of juvenile to be in protective disposition in Juvenile Law and lowering the age of criminal minor in Criminal Law and … the infringement of the right to state in judiciary proceedings need to be analyzed more deeply.

7호 처분 집행의 법적 근거 명확화에 관한 연구

박찬걸 ( Park Chan-keol ) 한국소년정책학회 2014 소년보호연구 Vol.25 No.-

According to the subparagraph 7, paragraph 1, article 32 of the current Juvenile Act, the judge of Juvenile Court can rule a disposition of 'entrusting to juvenile medical care facilities according to the law on treatment of hospital, sanitarium or protected juvenile' among the types of protective dispositions based on the hearing result. In this context, an issue is raised on whether ‘juvenile medical care facilities’ being referred to in subparagraph 7 disposition among the protective disposition of the Juvenile Act can be identified with medical & rehabilitation education juvenile hall' being referred to in the protective disposition ordinances. If it can be identified, an issue is raised on whether the disposition of subparagraph 7 also conform to 'the disposition of sending to juvenile hall'. It is because it could cause the result of subparagraph 7 also conforming to the disposition of sending to juvenile hall if juvenile medical care facilities are medical & rehabilitation education juvenile hall since in the existing discussion, the disposition of sending to juvenile hall commonly refers only to subparagraph 8 or 10 disposition among protective dispositions. In terms of the opposite case, if 'juvenile medical care facilities' being referred to in subparagraph 7 among protective dispositions in the Juvenile Act cannot be identified with 'medical & rehabilitation education juvenile hall' being referred to in protective disposition ordinances, it can be said that there is a gap in legislation only with existing ordinances due to lack of grounds to enforce subparagraph 7 at medical juvenile hall among the protective dispositions of paragraph 1, article 32 of the Juvenile Act. For such reason, it would be necessary to newly establish regulations related to the concept of 'juvenile medical care facilities' specified in the Juvenile Act, grounds in ordinances and grounds & principles of medical treatment. Hereinafter, the significance and contents of subparagraph 7 will be reviewed focusing on the necessity of subparagraph 7 disposition and process of change of organization in charge, period of subparagraph 7 disposition and status of recent dispositions, the cost burden issue of 'entrusted disposition such as hospital', status of transferring the subjects of subparagraph 9 & 10 dispositions to the subparagraph 7 disposition organization. In addition, it will examine existing discussions on re-establishment of the practical meaning of the entrusted disposition to juvenile medical care facilities and the concept of protected juvenile, as well as examine the status of legislative improvement. It will conclude the discussion by analyzing future assignments to supplement the task of clarifying legal grounds to enforce subparagraph 7 disposition.

소년보호처분의 전력을 전자장치부착명령의 요건으로 할 수 있는지 여부에 대한 검토

박찬걸 ( Park Chan-keol ) 한국소년정책학회 2015 소년보호연구 Vol.28 No.-

Supreme Court recognized that the ruling of the original trial was lawful regarding its dismissal of prosecutor's request for electronic device attachment based on its decision that a past juvenile justice processing history for sexual violence crime in addition to committing a sexual violence crime, which is the criminal fact of this case, by the claimant of non-attachment order does not apply to the case of having committed crime more than twice, which is defined in Subparagraph 3, Paragraph 1, Article 5 of Electronic Device Attachment Act. Despite such provisional conclusion, it is necessary to pay attention to opposing opinions being presented in the supreme court grand bench decision. According to the author's opinion, it is true that the basis of an argument being presented in minority opinions appears to be rather more convincing. This paper will first identify differences in the juvenile ruling procedure and criminal suit procedure regarding the notion of protective disposition and ex officio principle trial procedure Based on such findings, it will review the basic premise for discussion by examining the legal characteristics of electronic device attachment order and past changes in the conditions for electronic device attachment order. Based on such review, it will review main issues of this case by dividing it into specific parts of whether juvenile processing history can be included in ‘sexual crime committed more than twice’, interpretation of Paragraph 6, Article 32 of Juvenile Act, ruling on doer element (habit) in addition to behavior element (sexual violence crime) to conclude the discussion.

형법 제20조에 규정된 ‘사회상규에 위배되지 아니하는 행위’의 의미 및 다른 위법성조각사유와의 관계

박찬걸(Park, Chan-Keol) 한국형사법학회 2016 형사법연구 Vol.28 No.1

As laws tend to often change in accordance with the situation of times, circumstances precluding wrongfulness are continually urged to change likewise. And illegality is, by nature, not positioned against general law and order, so it can constitute a precluding circumstance even by extralegal perspective. Behaviors not violating social norms as such mean extralegal circumstances precluding wrongfulness that can be accepted besides regulations of law, and Korea's Criminal Code stands out from those of other countries in that such behaviors were stipulated by law and treated as a circumstance precluding wrongfulness. Circumstances precluding wrongfulness as stipulated by Clause 20 of Criminal Code have already drawn much attention of academic circles, accumulating vast research outcomes and as a result, spectrums of the relevant debates are extremely diverse indeed. And this study, in an attempt to understand specific meaning of 'Behaviors not violating social norms' focused on the debate contents of academics and trends of judicial precedents, firstly discusses relations between social reasonablity and social norms. Then, the study actively starts to establish the concept of social norms and basically seeks to induce unique functions of social norms from critical point of view against skepticism of social norms concept. Finally, the study examines relations between 'Behaviors not violating social norms' and other circumstances precluding wrongfulness. It firstly examines their relations as stipulated by Clause 21 and or 24 of Criminal Code, and then concludes the discussion by examining relations between behaviors not violating social norms and 'behaviors by ordinances or those by duty on work' as per Clause 20 of Criminal Code. 법률은 시대상황에 따라 수시로 변천하기 마련이기 때문에 위법성조각사유는 계속적으로 유동적인 상황에 처할 수밖에 없다. 즉 위법성조각사유는 법률의 규정에만 의존할 수가 없으며, 법률의 규정이 없는 경우에도 초법규적 위법성조각사유가 충분 히 인정될 수 있는 것이다. 또한 위법성이란 전체적인 법질서 내지 법적인 평가에 배치되지 아니하는 성질이기 때문에 초법규적으로도 조각사유를 상정할 수 있는데, 예를 들면 교사의 징계행위, 추정적 승낙에 의한 행위, 의무의 충돌 등이 그것이다. 이와 같이 사회상규에 위배되지 아니하는 행위는 법률의 규정 이외에 인정될 수 있는 초법규적 위법성조각사유를 의미하는데, 우리나라에서는 이를 입법화하여 법규적 위법성조각사유로 취급하는 점이 다른 나라와 구별되는 두드러진 특징이라고 하겠다. 형법 제20조에서 규정하고 있는 사회상규불위배행위와 관련하여서는 학계의 상당한 관심과 축적된 연구결과가 이미 선행되어 있는 분야라고 할 수 있으며, 그 논의의 스펙트럼 또한 실로 매우 다양하다고 할 수 있다. 이에 본고에서는 이러한 학 계의 논의 상황과 판례의 흐름을 중심으로 ‘사회상규에 위배되지 아니하는 행위’의 구체적인 의미를 파악하기 위하여 사회적 상당성과 사회상규의 관계에 대한 논의를 우선적으로 검토한다. 이후 본격적으로 사회상규의 개념에 대한 정립에 착수하기 되 는데, 기본적으로 사회상규 개념 회의론에 대한 비판적인 시각에서 사회상규 고유의 기능을 도출해 보고자 한다. 끝으로 ‘사회상규에 위배되지 아니하는 행위’와 다른 위법성조각사유와의 관계를 고찰해 보는데, 먼저 형법 제21조 내지 제24조에서 규정하고 있는 위법성조각사유와의 관계를 검토하고, 형법 제20조에서 규정하고 있는 ‘법령에 의한 행위 또는 업무로 인한 행위’와의 관계를 검토한 후 논의를 마무리하기로 한다.

랜덤채팅을 통한 청소년 성매매의 효과적인 대응방안

박찬걸 ( Park Chan-keol ) 한국소년정책학회 2017 소년보호연구 Vol.30 No.1

The majority of currently existing more than 700 random chatting applications are joinable without identification or adult authentication, and most of which have a structure that can be exposed to crime as input information does not go through a particular verification procedure. In addition, domestic laws require random chatting applications only to pass autonomous screening of the app store to be registered without any special report or permission, and it is very difficult to ascertain intermediation of prostitution and fact of agreement on the app, and designating as media harmful to juveniles is also not easy in reality, which leads to continuous comments that it is being neglected in the blind spot of crackdown, control and supervision. Taking such a present situation seriously, this manuscript aims to grasp the reality and seek countermeasures focusing on random chatting apps that are recently used as a main route of juvenile prostitution. For the foregoing, this study will first understand reality and characteristics of juvenile prostitution focusing on the present condition of crackdown of juvenile prostitution at the stage of police, disposition for juvenile prostitution at the stage or prosecution, main routes of juvenile prostitution and harmful consequences caused by the aforementioned, and will finish discussion seeking countermeasures against juvenile prostitution through random chatting through devising a method for blocking media harmful to juveniles etc., and analysis on the issues such as possibility of ban on the circulation of information alluding to·causing juvenile prostitution and application of a charge against lurer·recommendation of juvenile prostitution etc.

청소년성보호법상 ‘대상’ 아동·청소년을 ‘피해’ 아동·청소년으로 변경하는 입법안에 대한 비판적 고찰

박찬걸 ( Park Chan-keol ) 한국소년정책학회 2017 소년보호연구 Vol.30 No.4

As prostitution targeting children·adolescents who are in the phase when sexual values are being established has a high probability to make them have negative values of sex after growth or hinder their normal social life, the state and society are in duty to protect them more legally·institutionally. Especially, in the present reality that children·adolescents lacking in cognitive abilityㆍjudging abilityㆍdefense ability as compared to the adults are easily exposed to the risk of prostitution in the negative environment such as spread of internet and smart phone, sexual prematurity of adolescents, expansion of the trend of sexual openness etc., appropriateness to minimize wrongdoing of wrongdoing children·adolescents and maximize their damage can be created. Thus, the state and local governments are showing legislative movement to protect victimized children·adolescents faithfully from sex crimes and enable them to grown into healthy social members by abolishing regulations to place children·adolescents on protective disposition by including ‘children·adolescents’ who are the opposite party of prostitution as ‘victimized children·adolescents’ not as perpetrators, and establishing support centers for specialized and systematic support for victimized children·adolescents. The below will point out problems after examining the background and main contents of such legislation bill, and finish discussion by suggesting a measure to raise the age of statutory rape and give prominence to the damage of wrongdoing children·adolescents as a rational application plan of the concept of wrongdoing children·adolescents as alternatives.

군형법상 명령위반죄의 문제점과 개선방안

박찬걸(Park, Chan-Keol) 한국형사법학회 2011 형사법연구 Vol.23 No.3

Article 47, Military Criminal Act of Korea provides that a person violates or fails to obey any justifiable general order or regulation shall be punished by imprisonment or imprisonment without prison labor for not more than two years(Amended by Act No. 9820, Nov. 2, 2009). Although this provision has been right and just, both the interpretation and the application must be careful not to make an arbitrary decision and refrain from making a board interpretation. In this respect, this clause is too vague. Especially, it is not clear concept, content and legislator of ‘order or regulation’. Nevertheless, The Constitutional Court of Korea and The Supreme Court of Korea has handed down its decision with constitutional. However, this trend requires special attention, the Constitutional Court of Korea ruled in 1995 and 2011 that Violation of an Order was indeed unconstitutional, with four out of its nine justices speaking in one voice for the stated ‘second violation of an order judgment’. Article 47 have a matter of great problem in relation to the principal of ‘nulla poena sine lege’. Therefore, an immediate revision of this provision is needed. In conclusion, Article 47 should be abolished. The contents of ‘order or regulation’ which has ruled under Violation of an Order should be dealt to add a clause or disobedience.