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.

아동,청소년이용음란물소지죄의 해석론 및 입법론에 대한 검토

박찬걸 ( Chan Keol Park ) 한국형사정책학회 2013 형사정책 Vol.25 No.2

In relation with pornography possession crimes that are being evaluated as one of various prevention and countermeasures on sex crimes objecting to children and youth to which rigid devotion of stiff criminology are going forward to the degree of not comparing with any other crime areas, pro and cons on whether to make criminal charges itself in addition to fierce controversies on configuration requirements and punishment aspects are being confronted actually. Thus, this study looked into enactment and transitions of the crime, enforcement and treatments, interpretations on configuration requirements, legislation examples at foreign countries, and disputes on the maintenance and abolition etc same as the follows. First, though punishing the pornography in which children and youth appear seem to have certain protected legal interests such like preventing sexual harms on children and youth, criminal punishments on just appearances of virtual characters that can be recognized like children and youth at cartoon, animation, and games etc could be said as excessive legislation. Second, it is not unfair to judge possessing intentions alike in case of not quickly deleting the video quickly after downloading without knowing it as the pornography using children and youth and then watching it. The reason is that acknowledging the intention of possession is corresponded to be interpreted to the accused too disadvantageously in spite of no separate deeming provisions on the possession in laws. Thirdly, researcher cannot agree with the conclusion because strengthening regulations on simple possessing persons of pornography using children and youth as means of preventing sexual crimes on them is not insufficient in its basic premise. Fourthly, enforcements and penalties focusing on supplies including manufacturers and sellers etc like adult pornography instead of users could be said as more effective responses to sexual exploitation. As with all criminal policies, supplier-centered punishments are proper when considering terms of effectiveness called ‘selection and concentration’ through limited resources. Fifthly, fundamentally blocking approaches of adults to pornography under the pretext of preventing youth sexual cannot be justified, and regulating approaches to pornography because of confusions about sexual identity in case of adults could be said as excessive restrictions on basic human rights.

장애인 대상 성폭력범죄에 관한 최근의 입법과 합리적 대처방안 -일명 도가니법에 대한 비판적 검토를 중심으로-

박찬걸 ( Chan Keol Park ) 한국형사정책학회 2011 형사정책 Vol.23 No.2

Recently, it seems that the Korean political circles react too sensitively to press broadcasting on sexually violent crimes and voices of emotional public opinion. The revised legislation dated in October 28, 2011 on sexually violent crimes targeting disabled persons is not a product of rational results that worried and discussed deeply for a long time in the context like this, so it can be evaluated as a product of emotional results that has suggested alternatives too easily within an ultra-short period. If the movie with the background of Gwangju`s Inhwa school`s incidents was not shown, and if it was not run, the revision work of the Special Law on Sexually Violent Crimes would never be progressed with such fast speed. The content of the revision is being also consistent as exclusion of statute of limitations and strengthening of punishment, etc. so it is a recent situation that a punishment-oriented policy on attackers is taking priority over interests on sexual violence victims. Namely, a problem that the protection of sexual violence victims, etc. are handled carelessly are occurring while performing a strong criminal policy that its effectiveness is not transparent. In addition, though the legislature raises court penalty on sexually violent crimes like this, it is actually difficult that its purpose is straightly reflected to a sentence penalty of a court. When thinking of it, the most suitable measures on sexually violent crimes is considered as prevention through education instead of the strong criminal policy at the head of strengthening of punishment. In this aspect, when a court sentences a judgment of a conviction on a person who committed sexually violent crimes, the clause of ``combined assignment of punishment and learning order, etc.`` of Article 16 of the Special Law on Sexual Violence that is newly established in April 7, 2011 which the learning order necessary for prevention of repeated crime in the range of 300 hours or completion order of a sexual violence treatment program can be assigned dually has a very big meaning. Around 250 years ago, the claim of Beccaria that the rapidity and certainty of punishment are more effective over strictness of punishment in preventing crimes should be recalled once again.

성충동 약물치료제도 도입의 문제점과 개선방안

박찬걸(Park, Chan-Keol),송주영(Song, Ju-Young) 한국형사정책학회 2011 형사정책 Vol.23 No.1

The chemical castration for sex offender in order to reduce and manage risk of re-offending is currently used in the United States and European countries. The use of chemical castration is the use of drugs to treat and/or help manage the risk of sex offenders. Due to the increased concern of public fear of the serious sexual crime against children, the ministry of Korea suggests various policy implications. The policy implications include managing high-risk sex offenders, the use of electronic surveillance system, public profiling on sex offenders, and the medical treatment for paedophile. Recently, the 'Chemical Castration for Sex Offender Law' is established on July, 23, 2010 and will enforce from July, 24, 2011. This paper examines and assesses the main contents and problems of the 'Chemical Castration for Sex Offender Law'. Then, the paper will also introduce and compare the contents of the various types of chemical castration law by states in the United States. Finally, the paper will also evaluate whether such law and treatment for sex offender is a viable option. The controversial debate on the chemical castration is still crucial topic among policy makers, but withdrawing the current law seems impossible. Although the administration of chemical castration injections is not unnecessarily invasive, it is nevertheless criticized as a method of treatment due to the number of possible side effects. It is worth noting that several of the side effects can be controlled through supplements and constant medical monitoring. Therefore, the better understanding and improvement of the chemical castration law are necessary.

성매매의 개념과 관련된 최근의 쟁점

박찬걸 ( Chan Keol Park ) 한국형사정책학회 2014 형사정책 Vol.26 No.3

As stated in the Article 1 of the Act on the Punishment of Prostitution for definition of purpose, it can be seen as an act enacted to eradicate ① act of prostitution, ② act of intermediating sex trade and ③ human trafficking for prostitution. In the Article 4 of the Act on the Punishment of Prostitution, it states that anyone is prohibited to conduct that corresponds with either one of these three types and defines in details according criminal punishment articles in the Article 18 and 27 of the Act. Accordingly, it can be said that discussions on the concept of ‘prostitution`` and scope of intermediation that can become the basic premise of interpreting the regulation on punishment of prostitution are the starting point of prostitution policy of our country. In addition, in-depth discussion on the definition of prostitution should not be neglected in the sense that new & varied forms of businesses that are difficult to be considered as being subjected to regulation in regards to the punishment of prostitution. Based on the awareness of such current situation, this paper will first compare the acts of prostitution under the Act on the Punishment of Prostitution and the acts of purchasing sex under ``the Act on the Juvenile Sex Protection`` (hereafter, ``The Juvenile Sex Protection Law``). In specific, they will be divided into the issues of subject of acceptance, relation between acceptance and promise, relation between acceptance and provision and establishment of prostitution allurement & suggestion crime under the Act on the Punishment of Prostitution (Ⅱ). Next, it will analyze the conflict between the cases related to the acknowledgement scope of behavior similar to sexual intercourse and theories (Ⅲ), as well as critically approach the issue of whether to consider ``act that causes sexual sense of shame or disgust to ordinary people as an act of contacting & exposing the entire or parts of the body`` and ``masturbation`` as types of prostitution (Ⅳ). This paper will also evaluate the contents on a series of revised legislative bills of the Act on the Punishment of Prostitution regarding the applicability of criminal punishment of ``sexual service`` that can be seen as a special issue in the case of inconsistency between ``a person that accepted or promised to accept money & valuable or other property gains`` and ``a person that performs prostitution or the counterpart`` (Ⅴ) with a conclusion of discussion (Ⅵ).

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.

군형법상 군무이탈죄와 관련된 문제점과 개선방안

박찬걸(Park Chan-Keol) 한국형사정책학회 2010 형사정책 Vol.22 No.1

Desertion from the military service would cause not only personal disaster but also serious military results such as a loss of military power, a weakening of morale in military and the decline of military dignity. Nevertheless desertion from military service crime is important and occurs frequently from the military, about the position of analysis or judicial precedent is not clear. The contents of this study is as follows; Ⅰ. Introduction Ⅱ. Desertion from the military service(§30 ①) 1. The problem related character of crime 2. The problem related object requirement 3. The problem related punishment Ⅲ. Desertion from the military service(§30 ②) 1. meaning 2. The problem related object requirement Ⅳ. The problem and improvements of desertion from the military servicerelated crimes. 1. Violation of an order 2. Desertion from the special military service Ⅴ. Conclusion

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.

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.

성매매범죄의 양형기준안에 대한 검토

박찬걸(Park, Chan-Keol) 한국형사법학회 2014 형사법연구 Vol.26 No.1

성매매범죄 양형기준안에 의하면 우선 19세 이상 대상 성매매범죄와 19세 미만 대상 성매매범죄로 대분류를 하고 있는데, 이는 성매매처벌법과 아청법이 성매매의 대상을 기준으로 법정형을 크게 다르게 규정하고 있음에 연유하며, 이후 행위유형에 의거하여 성매수, 성판매강요, 성매매알선 등의 범죄로 중분류를 하고 있다. 다만 성매매처벌법 제21조 제1항의 (성인을 대상으로 하는) 성매수죄는 법정형이 ‘1년 이하의 징역 또는 300만 원 이하의 벌금, 구류, 과료’로 되어 있어, 징역형의 형량분포범위가 좁은 점을 고려하여 양형기준 설정범위에서 제외하고 있다. 결국 성매매범죄의 양형 기준안은 ① 19세 이상 대상 성판매 강요, ② 19세 이상 대상 성매매 알선, ③ 19세 미만 대상 성매수, ④ 19세 미만 대상 성판매 강요, ⑤ 19세 미만 대상 성매매 알선 등 총 5가지의 유형별 양형의 범위와 각각의 양형인자로 구성되어 있다. 본고에서는 아동ㆍ청소년의 성을 사는 행위의 상대방이 되도록 강요 등(19세 미만 대상 성판매 강요) 및 아동ㆍ청소년 대상 성매매 알선 등(19세 미만 대상 성매매 알선)을 제외한 3가지 유형의 성매매범죄에 대하여 첫째, 제시된 형량의 내용과 기존에 시행되고 있는 양형기준 가운데 법정형이 유사한 범죄군과의 비교를 통하여 형량의 범위가 적절하게 제시되어 있는지 여부, 둘째, 양형기준의 대상이 된 구성요건 이외에 추가적으로 포함시킬 것이 있는지의 여부, 셋째, 제시된 양형인자는 각 유형별 성매매범죄의 특성을 제대로 반영하고 있는지의 여부, 넷째, 양형인자로 제시된 가중 및 감경요소 이외에 추가적으로 포함시켜야 할 인자가 있는지의 여부, 다섯째, 성매매범죄에 대한 외국의 처벌규정을 통한 우리나라 성매매범죄의 형량과 양형인자의 비교ㆍ검토 등을 중심으로 논의를 진행하기로 한다. According to the sentencing guidelines of prostitution crime, it is mainly classified into the prostitution crime of above age 19 and the prostitution crime of below age 19, which is based on the fact the statutory punishment of the Prostitution Punishment Act and the Juvenile Sex Protection Act is being defined significantly differently for the subject of prostitution. In addition, it is being classified again into the crimes of purchasing sex, prostitution coercion and prostitution recommendation. However, statutory punishment of the crime of purchasing sex in the Paragraph 1, Article 21 of Prostitution Punishment Act is 'imprisonment of less than a year or less than 3 million won in fine, detention, penalty'. Considering that the sentence distribution scope of imprisonment is narrow, it is being excluded in the establishment scope of sentencing guidelines. Consequently, sentencing guidelines of prostitution crime consist of the five types of sentencing - ① prostitution coercion for above age 19, ② prostitution recommendation for above age 19, ③ purchasing sex from a person below age 19, ④ prostitution coercion for below age 19, and ⑤ prostitution recommendation for below age 19 - and respective sentencing factors. In regards to the remaining three types of prostitution crime upon excluding the coercion to become the other party of the act of purchasing sex from children/juvenile (prostitution coercion for below age 19) and the recommendation of prostitution for children/juvenile (prostitution recommendation for below age 19), the discussion hereafter will focus on the followings: first, whether the scope of sentencing has been appropriately presented through a comparison with a crime group with similar statutory punishment among existing sentencing guidelines being implemented and the contents of presented sentence; second, whether there are additional components to be included in addition to the components that are the subject of sentencing guidelines; third, whether the presented sentencing factor properly reflects the characteristic of prostitution crime of each type; fourth, whether there are additional elements to be included in addition to the weighted & reduction element presented as sentencing factor; fifth, a comparison and review of the sentence and sentencing factor of prostitution crime of our country through the rules of punishment of other countries.