[논문] 헌법재판소 판례로 본 행형과 수용자의 인권-행형에 대한 헌법적 이해-

이호중(Lee Ho-Joong) 한국형사법학회 2004 刑事法硏究 Vol.22 No.-

Although a few outstanding decisions of The Constitutional Court of Korea(KCC) have steered the penological reform, still remains much vagueness in the arguments on constitutionality of prison regulations in the penological cases. This article critically analyzes the constitutional discourses of KCC about penological aims and the restraints of prisoners' constitutional rights. In the constitutional context, the prison regulations which impinge on inmates' constitutional rights should be reasonably related to the legitimate penological aims and should be no greater than is necessary to the protection of penological aims. However, The KCC has failed to show what the legitimate penological aims are. And this vagueness has made the arguments of the KCC less elaborate in the test of “reasonable connection"". This article tries to clarify the relationship between the substantial penological interests of rehabilitation, security, social defense. From constitutional “Social-State"" principle, it can be construed that the rehabilitation should attain superiority over the other penological interests. And rehabilitation should be understood as a process which furnishes the prisoners with an opportunity for life without criminal conducts. It never means that the government can force a person to be a ‘good citizen'. In the test of constitutionality of the restraints of prisoners' rights it should be considered that the protections of the human rights of prisoners in general help the governmental penological aim ‘rehabilitation'. So the test of the KCC must include the following relevant factors : (1) whether and the extent to which the issued constitutional right can help the prisoners' rehabilitation, and whether and the extent to which the restraints of the constitutional rights can protect the other penological interests, (2) whether there are alternative means of exercising the asserted constitutional rights.

성형법 담론에서 섹슈얼리티의 논의지형과 한계

이호중(Lee, Ho-Joong) 한국형사정책학회 2011 刑事政策 Vol.23 No.1

The crime of sexual intercourse under pretence of marriage(Article 304 of Korean Penal Code) was pronounced as ‘unconstitutional’ by Korean Constitutional Court(KCC) on the ground that it criminalized a behavior that does not deserve to criminal sanction but only moral blame. Maybe that decision would have a great influence on the debate about abolition of the crime ‘adultery’ in Korean society. This paper has interest on the issue, ‘how or in which context the discourse of sexuality which is developed in the realm of feminism can be reflected in criminal legal discourse’. The above mentioned decision of KCC is based upon legal liberalism, the characteristic of which is that each man or woman equally has the right of sexual autonomy and free sex. However, "sexuality" is neither natural, nor neutral. It is socially constructed by gender-power in our society. This context of gender-power relation should be sincerely considered in criminal legal discourse. This article argues that the right to sexual autonomy of free sex should be understood as one which is based on the democratic and equal communications. The right to sexual autonomy would be infringed not only by a 'violent' sexual act, but also by a sexual act interpreted as not-violent, but based on the gender-distorted sexuality. And so only the reason of superficial freedom or equality of free sex can not justify the abolition of the crime ‘adultery’.

아동학대에 대한 대응시스템의 문제점과 전문법원제도의 도입방안

이호중(Lee, Ho-Joong) 한국피해자학회 2007 被害者學硏究 Vol.15 No.2

This article reviews the justice system that responds to child abuse and neglect crimes. The most serious problem is that the current system is a fragmented system. It has not been conceptualized as a whole or put into practice by a common set of statutes. Victim protection services are implemented by welfare service agencies; parental rights of the criminal can only be restricted by a decision of civil court; and the criminal is punished through the criminal process by criminal court. Many of the agencies that handle the child abuse cases and victim protection services are working independently, and not designed primarily with child abuse victims in mind. Based on the idea of community justice, the main theme of the author is that the justice system that handle the child abuse cases should function as a complex set of agencies and institutions that include police, prosecutors, civil and criminal court, and child protection agencies. An important goal of the justice system against child maltreatment is to prevent future maltreatment of the children and to ensure the children's safety. To meet this goal, the justice system ought to offer proper services, preventive or remedial, and to facilitate the delivery of needed services. Therefore, this article suggests 1) that the specialized courts that have the exclusive jurisdiction over the child abuse cases should be established, 2) that those courts manage the whole process including child victim protection services and penalties to the criminal, and 3) that the 'child victim protection order' for the integrated protection services should be urgently introduced.

소비자 운동으로서 집단적 항의전화걸기와 위력에 의한 업무방해죄

이호중(Lee, Ho-Joong) 한국형사법학회 2011 刑事法硏究 Vol.23 No.4

This paper analyzes the lower court’s criminal decision regarding the ‘secondary boycott’ against three major newspapers. In 2008 many netizens as newspaper consumers opened a internet cafe for consumer boycott against Chosun, JoongAng and DongA daily newspapers and they organized the protest-calling movement to the enterprises that carried advertisements in those newspapers. The issue in the court’s decision was whether the associated protest call of many unspecified people is a crime of ‘interference with business’(Article 314 of Korean Criminal Code) or it should be guaranteed as ‘consumer movement’. The court decided that this case could not be protected under the guarantee of consumer boycott, so punishable under Article 314 of Korean Criminal Code. My criticism is as follows. First, the protest calling cannot be estimated as ‘threat of force’ under Article 314, even though the calling happened massively. The protest call against any enterprise should be allowed as ‘comsumer boycott or comsumer movement’. The right of consumer movement which is prescribed in Article 124 of Korean Constitution includes collective or associated boycotts. Second, I criticizes the court’s reasoning of discrimination between the primary and secondary boycotts. The ‘secondary boycott’ should be guaranteed equally as the primary boycott. Third, I suggest that the Article 314 of Korean Criminal Code should not be applied to the consumers’ boycotts without violence, because any boycott or movement without violence should be protected broadly as a constitutional right of consumer movement, whether individual or collective, whether primary or secondary.

미신고집회의 금지와 처벌에 대한 형사법적 고찰

이호중 ( Ho Joong Lee ) 민주주의법학연구회 2011 민주법학 Vol.0 No.46

Das koreanische Versammlungsgesetz statuiert Anmeldepflicht fur den Veranstalter, der eine offentliche Versammlung oder einen Aufzug veranlasst. Die Durchfuhrung der Veranstaltung ohne Anmeldung ist eine Straftat und begrundet polizeiliche Auflosungsmaßnahmen. Nach der herrschenden Lehre und den Entscheidungen des koreanischen Verfassungsgerichts soll die Anmeldung nicht Erlaubnis sein, sondern nur die Kooperationspflicht fur Ermoglichung der Veranstaltungen und Berucksichtigung der relevanten Interessen durch polizeiliche Erwagungen. Aber tatsachlich funktioniert Anmeldungsgebot als Erlaubnis-system, weil die Anmeldung-system mit polizeilicher Verbotsverfugung ohnehin ermoglicht, dass die Polizei einer konkret geplanten oder durchfuhrenden Versammlung durch grobem Ermessen verhindert. Und die Strafbarkeit der Durchfuhrung der Veranstaltung ohne Anmeldung verletzt das Grundrecht der freien Versammlungen. Zum einen, widerspricht die Strafbarkeit der Charakter der Almeldepflicht als Kooperationspflicht. Zweitens, ist es verfassungwidrig, dass das Versammlungsgesetz die Durchfuhrung der Veranstaltung ohne Anmeldung kriminalisiert. Und bloße Nichtanmeldung sollte kein Auflosungsgrund sein. Sie reicht nur dann fur eine Auflosung, wenn sie sich mit einer unmittelbaren Gefahrdung der offentlichen Sicherheit verbindet.

일반 : 유엔 강제실종협약의 국내적 이행방안과 형사법적 쟁점

이호중 ( Ho Joong Lee ) 민주주의법학연구회 2007 민주법학 Vol.0 No.35

형사절차와 인권

이호중(Ho-Joong Lee),성윤환(토론자) 한양법학회 2006 漢陽法學 Vol.19 No.-

우리나라의 양형기준에 대한 비판적 분석

이호중(Lee, Ho-Joong) 한국형사법학회 2010 刑事法硏究 Vol.22 No.1

The Korean Sentencing Commission has established sentencing guidelines firstly on 7 crimes including murder, robbery, sexual assault, bribery, perjury etc. in 2009. After great debate The Commission adopted a gradual approach like the United Kingdom's model, not following comprehensive guideline scheme like U.S.A. model. This paper aims to analyse the structure of Korean sentencing guideline system and point out its characteristics and problems. The characteristics of our sentencing guideline scheme are followings : 1) sentencing guidelines are and will be established independently on each crime category, and each crime category is classified into several “types”, 2) the Commission did not accept the methodology of calculating major sentencing factors, but adopted such system that within each crime category sentencing factors are divided into two groups according their importance, the one is 'special sentencing factors', and the other is ‘general sentencing factors’, 3) these two groups of sentencing factors are also divided into ‘aggravating factors’ and ‘mitigating factors’, 4) each type has three sentencing ranges(mitigating range, basic range and aggravated range) and the appropriate range is selected according to comparing the number of special aggravating factors and special mitigating factors, for example, if special aggravating factors outnumber special mitigating factors, then ‘aggravated range’ will be selected, 5) general sentencing factors are considered when the judge sentences specific term within the selected sentencing range. The Korean sentencing guidelines, briefly summarized above, will be expected to reform sentencing problems, such as disparities, leniency. However, this paper points out some problems and deficiencies of our sentencing guidelines both theoretically and practically. Firstly, there has been no serious review regarding the fundamental issue, that is, which purpose we pursue through sentencing guidelines among various purposes of punishment. Secondly, the Commission did noy accept so-called ‘grid model’ which is based upon the calculation of major sentencing factors according to their importance in each crime. As a result, every ‘special sentencing factor’ are regarded as equivalent. Thirdly, the criteria of suspension of imprisonment is very obscure and imprecise, so we have to recognize that the guidelines are not elaborate enough to control the discretion of judges.

수형자의 선거권 제한의 위헌성

이호중 ( Ho Joong Lee ) 한국비교형사법학회 2009 비교형사법연구 Vol.11 No.1

According to criminal law and election law of Korea, all convicted prisoners are automatically forbidden to vote while in prison or on parole. In 2004, the Constitutional Court of Korea held that this disenfranchisement provision is not unconstitutional. But in 2008 an another convicted prisoner in detention challenged the denial of his right to vote again. The Court`s decision seems to be near at hand. This paper criticizes the current legal policy that absolutely prohibits prisoners from voting until the term of imprisonment is fully served. Such a general, blanket restriction on the right to vote of prisoners has no material effect on the deterrence of crimes. Conversely, enfranchisement can be very helpful to the rehabilitation policy, because voting in prison encourages prisoners to behave responsibly and appreciate the implications of citizenship. In respect to the compatibility with Constitution, it could be considered as a legitimate aim that the ban on voting right of prisoners contributes to keep the public confidence to the national elections. However, this paper argues that the absolute ban as a measure must be seen as disproportionate. Firstly, such a blanket restriction applies automatically to a wide range of offenders, from relatively minor offences to offences of the utmost gravity. Secondly, while there is severe doubt as to the efficacy to achieving such an aim through a bar on voting, the right to vote infringed by this policy must be a vitally important constitutional right in democratic society. Therefore the conclusion of this study is that the provision which allows a blanket ban on prisoners` right to vote must be declared as unconstitutional.

국가인권위원회 5년의 평가와 과제 ; 국가인권위원회 결정이 국가기관에 미친 영향 평가 - 법무부/검찰/경찰에 대한 영향을 중심으로 -

이호중 ( Ho Joong Lee ) 민주주의법학연구회 2007 민주법학 Vol.0 No.33