죄수론의 판단구조에 관한 연구

정혜욱(Choung, Hye-Uk) 원광대학교 법학연구소 2012 圓光法學 Vol.28 No.3

Determining the number of offenses, act-based principle which starts off from counting the number of acts committed and crime-based principle which starts off from counting the number of crimes committed are proposed competitively. On the other hand, there is also a view saying either principle can be used because the order is not an important factor. The number of offenses is the last stage of criminal assessment. Because it is the last decision making stage following the penality decision, it should be harmonized with criminology and prevent any misjudgements and chaos. If these factors are not related and affected by the two principles mentioned above, there would be no practical use in discussing on the decision-making structure for determining the number of offenses. studying it, I have reached at a conclusion: system that determines the number of acts prior to penality decision, followed by the determination of number of crimes would allow the harmonization with criminology. This is because the subject of criminal assessment is a man's act and beginning with deciding and examining such subject is the natural flow in the criminology system. The unit of act should first be determined when following the act-based principle and it is a very important and difficult work because it asks to divide a man's act, that is a one uninterrupted continuum. Subsequently, nature of the man's act cannot be used as a standard for dividing it into separate units. Rather, it should be based on the social recognition frame which gives a distorted vision of seeing the continuous reality as one that is not continuous. There are several views to determine the unit of act such as the one that relates the unit of act to legal sense and social/penal standards of act. These views have appropriate decision criteria but still need complementation in crystallizing them. This complementation can be achieved by understanding the contents of the social recognition which can be discovered through the language that we use. For example, the range of expressions that we use to individualize the portion of man's act into one unit and designating it(killing, raping, stealing money and goods, etc.) can be said to be the one unit of act.

AI의 책임능력

정혜욱(Choung Hye-uk) 중앙법학회 2021 中央法學 Vol.23 No.4

인공지능이란 ‘인지기능, 판단기능, 행동기능 및 학습기능을 갖춘 기계’를 말한다. AI가 프로그램이 되어 있는 그대로 일을 하는 단계는 아무리 복잡한 임무를 수행한다고 하더라도 약한 인공지능이라고 할 수 있다. 강한 인공지능은 여기에서 더 나아가 프로그래머가 코딩을 해주는 대로 그에 따라 일을 하는 수준을 넘어, 스스로 학습을 통해서 행위지침을 찾아내고 이에 따라 자신의 코딩을 변경할 수 있는 단계에 도달한 기계를 말한다. 강한 인공지능 단계에 돌입하게 되면 AI가 제작자의 프로그래밍 내용에 따라 움직이는 것이 아니기 때문에 제작자에게 더 이상 인공지능의 행위에 대하여 책임을 물을 수 없는 상황이 된다. AI가 일종의 자유의지를 가지게 되는 것이라고 할 수 있다. 형사책임의 근거는 ‘자기의 행위가 불법이라는 것을 알거나 알 수 있었고, 그 인식에 따라 행동을 조정할 수 있었음에도 불구하고 적법한 행위를 하지 않고 불법한 행위를 하였다’는 점이다. 따라서 형사책임의 주체가 되기 위해서는 의사를 형성할 수 있어야 한다. 의식이란 ‘외부 자극에 대한 반응 능력’을 말한다. AI는 인지기능, 판단기능, 행동기능, 학습기능 등을 갖추고 있기 때문에 의식을 가지고 있다고 할 수 있다. AI가 아직 강한 인공지능의 단계에 본격적으로 돌입하지는 않았지만 인공지능의 오작동으로 인해서 사람이 사망하게 되는 일이 이미 벌어지고 있다. 이처럼 사람에게 위해를 가하는 일이 벌어졌을 때 AI를 제작한 프로그래머의 책임을 물을 수 없다면, 인공지능이 이에 대한 책임을 부담하도록 하는 수밖에 없다. 인공지능이 규범체계에 순응하도록 만들기 위해서는 자연인의 경우와 마찬가지로 사회화 과정을 거치게 하여야 한다. 인공지능이 인간의 뇌기능을 모방하여 뉴럴 네트워크를 기반으로 지성을 가지게 될 것이기 때문에 규범체계와 관련해서 사회화 과정을 거치는 것이 적절한 해법이라고 생각한다. 사회화 과정은 규범을 위반할 때 불이익을 가하고 규범을 준수할 때 칭찬을 하는 작업이 수없이 반복되면서 이루어진다. 인공지능이 사회화 과정을 거치도록 하기 위해서는 AI가 두려움을 느끼는 존재가 되어야 한다. AI가 두려움과 같은 감정을 느끼는 존재가 되어야만 인공지능이 규범체계 안으로 들어올 수 있게 된다. Artificial intelligence refers to a machine with cognitive, judgment, behavioral control and learning functions. The stage in which AI works as it is programmed, no matter how complex the task, can be called weak artificial intelligence. Strong AI refers to a machine that has reached a stage where it can find behavioral guidelines through self-learning and change its own coding accordingly, going beyond the level of working according to the programmer"s coding instructions. When it enters the stage of strong artificial intelligence, it becomes a situation in which the creator can no longer be held responsible for the actions of the artificial intelligence because the AI does not move according to the creator"s programming content. It can be said that AI will have a kind of free will. The basis for criminal responsibility is that ‘they knew or could have known that their actions were illegal, and they acted illegally even though they were able to adjust their actions according to that recognition’. Therefore, in order to become a subject of criminal responsibility, one must be able to form a will. Consciousness refers to the ability to respond to external stimuli. AI can be said to have consciousness because it has cognitive functions, judgment functions, behavior control functions, and learning functions. Although AI has not yet entered the stage of strong artificial intelligence, human deaths are already taking place due to malfunctions of artificial intelligence. If the programmer who created the AI cannot be held accountable when such harm to humans occurs, the only choice is to let the AI take responsibility for it. In order for artificial intelligence to conform to the normative system, it must go through the socialization process as in the case of natural people. Since artificial intelligence will have intelligence based on neural networks by mimicking human brain functions, I think that going through the socialization process in relation to the normative system is an appropriate solution. The socialization process is carried out by repeating countless repetitions of penalizing norms for violating norms and praising them for observing norms. In order for AI to go through the socialization process, it must become a fearful being. Only when AI becomes a being that can feel emotions such as fear can AI enter the normative system.

사이버 범죄와 관할

鄭惠旭(Choung Hye-Uk) 중앙대학교 법학연구소 2007 法學論文集 Vol.31 No.2

Technological Development of computer network technology has resulted in a totally new type crime, which is commonly called transnational cyber crime. This evolution has led to a multitude of new problems for traditional criminal law, which stem primarily from two fundamental characteristics of cybercrime. First, the growing importance of incorporeal objects raised many new questions with respect to the legal status of incorporeal objects, for both substantive and procedural criminal law. Second, the technological possibilities of the Internet for committing a crime in one country with disastrous consequences in many other countries led to new questions of transnational crimes for procedural law, for international co-operation as well as for substantive and procedural jurisdiction. In this area, serious problems exist, since the concept of criminal jurisdiction is based mainly on the principle of territoriality, whereas cyberspace seems to concern a global space where territorial frontiers have no significance. Thus in some cases, especially with respect to illegal content on the Internet, the question arises whether cybercrimes are not covered by any national jurisdiction or whether they should fall under the jurisdiction of every national legal system, if, for example, the illegal contents of a server on the Internet can be accessed in all countries of the world. In practice, this question of substantive jurisdiction is particularly important, as many crimes in cyberspace are judged differently by the various legal systems. The aim of this seeay is to answer these questions of substantive jurisdiction for Korean law and to develop some ideas for future international solutions to cybercrime jurisdiction. As a consequence, the accessibility of content considered legal in foreign countries cannot be prevented in any corner of the globe today without internationally recognized minimum penal standards, adequate provisions of procedural law, and the implementation of these with the help of international agreements. Thus, aside from the adequate right of sovereign states to apply penal sanctions, global cyberspace requires a global criminal-law response in which Internet-specific regulations governing the scope of individual national criminal jurisdictions are complemented by minimum international co-operation.

고의 인정 여부에 대한 법적·심리학적 판단기준

정혜욱 ( Choung Hye Uk ) 중앙대학교 법학연구원 문화.미디어.엔터테인먼트법연구소 2020 문화.미디어.엔터테인먼트 법 Vol.14 No.1

고의의 인정 여부는 특히 사람이 사망하는 결과가 발생한 경우에 현격한 형량의 차이를 가져오므로 실질적으로 상당히 중요한 판단이다. 그러나 사람의 심리상태를 직접 인식할 수 있는 방식이 없기 때문에 고의의 여부는 객관적으로 드러난 사실을 보고 추정하는 방법을 사용하는 수밖에 없다. 형사소송에서 사실의 인정은 증거에 의하여야 하는데, 증거의 증명력은 법관의 자유판단에 의하도록 정해져 있다. 그러나 그러한 법관의 자유는 ‘합리적 의심이 없을 정도의 증명에 이르러야 한다.’는 제한을 받는다. 이에 따라 의심스러울 때는 피고인에게 유리하게 사실관계를 확정해야 한다. 그러나 당연히 증명력이 인정될 만한 증거를 합리적인 근거도 제시하지 않은 채 배척하는 것은 자유심증주의를 벗어나는 것으로서 위법이다. 여기서 당연히 증명력이 인정될 만한 증거인가의 여부는 경험칙을 기준으로 판단하게 된다. 결국 자유심증주의는 경험칙에 의하여 제한되는 원칙이다. 경험칙은 지금까지의 경험에 의거하여 형성된다. 경험칙은 명백하여 확인할 필요도 없는 내용도 있지만 그렇지 않은 경우도 있다. 확실해서 별도의 증명을 필요로 하지 않는 경우를 ‘공지의 사실’이라고 한다. 예를 들어 사람의 가슴을 조준하여 총을 발사하면 사람이 사망하게 된다는 점은 누구나 다 아는 사실이다. 이에 비하여 ‘특별한 사실’은 전문영역에 속하는 사람은 알고 있지만 일반인은 알지 못하는 사실이다. 누구나 다 알고 있는 사실이 아니어서 특별한 사실에 속하는 내용은 전문가에게 확인하여야 한다. 예를 들어 졸레틸 5ml로 사람을 살해할 수 있는가 하는 내용은 의학 전문가에게 문의하여 답을 들어야 한다. 감정에 의존하여야 하지만 특별한 사실도 경험칙에 속하고 법관의 자유심증을 제한한다. 마지막으로 ‘애매한 사실’이 문제가 된다. 심리학적 경험칙은 많은 경우 의견이 분분하고 명확한 결론에 도달하지 않기 때문에 사실관계 판단을 어렵게 한다. 예를 들어 금전적 이익을 위해 가족을 살해하는 것은 매우 비정상적인 행동이다. 이러한 판단이 틀렸다고 할 사람은 없다. 그러나 어느 정도 비정상적이면 그러한 행동을 하는가에 대해서는 답을 하기 힘들어 보인다. 이 문제를 살인을 하게 되는 중요한 이유를 세 가지로 나누어 검토해보면 대략 다음과 같이 된다. 우선 재산상의 이익을 위해서 살인을 하는 사람은 중등도 이상의 품행장애가 있는 경우이다. 그중에서도 사소한 재산상의 이익을 위해서 사람을 살해하는 자는 고도의 품행장애에 해당한다. 분노조절장애로 인하여 가족을 살해하는 자는 고도의 품행장애를 가진 유형에 해당한다. 애착조절장애 때문에 결별을 선언하는 애인이나 배우자를 살해하는 사람은 편집성 성격장애를 가지고 있는 경우에 해당한다. Intentional recognition is a very important judgment in practice, as it results in significant differences in prison sentences, especially in the case of death. However, since there is no way to directly recognize a person's psychological state, it is inevitable to use a method of deliberately looking at and estimating objectively revealed facts. In criminal proceedings, the recognition of the facts must be based on evidence, and the proof power of the evidence is decided by the judge's free judgment. However, such freedom of judges is limited by ‘there must be a proof that there is no reasonable doubt.’ Accordingly, when in doubt, the facts should be confirmed in favor of the accused. However, of course, it is against the law to exclude evidence for which proof of evidence is acceptable without providing a reasonable basis, as it is beyond the Principle of free assessment of evidence. Naturally, it is judged based on Natural laws learned by experience whether the proof ability is acceptable. After all, Principle of free assessment of evidence is a principle limited by Natural laws learned by experience. Natural laws learned by experience are shaped based on experience so far. Natural laws learned by experience are obvious, and there are some that do not need to be verified, but some are not. When it is certain that you do not need a separate proof, it is called a “known fact”. For example, everyone knows that aiming a person's chest and firing a gun will result in death. On the other hand, 'special facts' are known to those who belong to the specialized field, but not to the general public. It is not a fact that everyone knows, so the contents belonging to a special fact should be checked with experts. For example, if you can kill a person with 5 ml of zoletyl, you should ask a medical professional for an answer. You have to rely on Appraise, but special facts also belong to Natural laws learned by experience and limit the free assessment of judges. Lastly, 'ambiguous facts' become a problem. In many cases, psychological empirical rules make it difficult to judge facts because opinions are divided and do not reach a clear conclusion. For example, it is very unusual to murder a family for financial gain. No one can say that this judgment is wrong. However, it seems difficult to answer the question of how abnormally it behaves. Considering the three major reasons for murdering this issue, we will look at the following. First of all, those who murder for the sake of property have more than moderate Conduct Disorders. Among them, those who murder people for minor property gains are highly Conduct Disorders. Those who murder a family due to anger control disorder are among those with high Conduct Disorders. Anyone who murders a lover or spouse who declares separation due to attachment disorder is a case of paranoid personality disorder.

부진정부작위범의 작위의무에 관한 연구

정혜욱(Choung Hye Uk) 중앙대학교 법학연구원 2013 法學論文集 Vol.37 No.3

The legal liability that bases the acknowledgement of disingenuous negligence can be defined as 'a liability that is being forced to be fulfilled or should be forced by the official restrictive means'. The judgement criteria that were first used for legal liability to act are legislation, contract, and ingerenz(Precedent act) which are the grounds for guarantor position development based on the formality theory. Formality theory is useful in a way that it has a definite judgement criteria. However, it gives difficulty when differentiating between when and when not to acknowledge the legal liability to act in an actual practice. Practicality theory is the theory that was created to overcome the formality theory's problem by judging the acknowledgement of the liability to act in more practical sense. However, practicality theory also poses a problem in a sense that a crystalized judgement criteria is not yet provided to decide in what circumstance a liability to act should be acknowledged. Unified theory, theory, on the other hand, combines above two theories as to complement each other's cons and pros. There is, however, criticism against this theory seeing that the two theories are of the two very different characters so that connecting their judgement criteria is not reasonable. Yet, I believe that if we develop the ways to combine the two theories appropriately, a reasonable judgement criteria that is applicable to specific cases can be constructed. The legal liability to act that bases the acknowledgement of disingenuous negligence should be categorized according to the specific characters of the conditions that the legal liability to act should thought to be acknowledged but not by the type of the regulations that are the bases for acknowledgement of liability such as legislation, contract, and logic. Furthermore, a condition where the legal liability to act takes place can be further classified into two cases: acknowledging the guarantor position as an obligant of protection or as an obligant of management. However, because this classification is insufficient to present each condition's categorical contents in detail, it needs more specificity.

과실의 개념에 관한 연구

정혜욱(Hye-Uk Choung) 중앙대학교 법학연구원 2012 法學論文集 Vol.36 No.1

Similar to the concept of intention, the concept of negligence has both the realistic side and normative side. Because negligence is the failure to exercise the reasonable care, it has its realistic side in terms of psychological tendency. However, it also has normative side in terms of deciding how much psychological tendency should be considered as intentional or negligent when looking at the borderlines such as gross negligence and willful negligence. Regarding the position of negligence in the elements-system of criminal act, monism, dualism and neo-monism have been developed successively. Monism looks at the position only as the element of responsibility. Dualism looks at it as the element of responsibility as well as the element of a crime. And neo-monism sees that the content of negligence is entirely the same whether in the element of a crime stage or in the responsibility stage. Currently, vast majority of Korea supports dualism. Recently, as the concept of risk-society has been brought to many people’ s attention, theory of objective allocation based on the theory of allowed risk is attempting to set up the duty to exercise reasonable care. The attempts to crystallize the criterion for the violation of the duty to exercise reasonable care has been made from many different viewpoints. However, they are also common to each other in a sense that they often utilize the concept of the reasonable person, mobilize the special regulation, and refer to the actual circumstances of the general public. The 14th article of Criminal Law, the negligence rule, describes the punishment and therefore should possess the possibility to be clearly interpreted. Otherwise, it will violate the clearness of the principle of legality. The clearness of the Criminal Law is secured when the prohibited action can be identified using the general interpretation methodology. Using the concept of standard reasonable or prudent person as a criterion to define a negligent seems to render difficulty to acquire clearness. Also, while it is true that special regulation covers quite a large domain, it is still hard to say that it has been legalized flawlessly and lacksclearness. The last way to acquire clearness is by referring to the actual circumstances of the general public. This can be done through analysing the precedents that can be referred back to the specific case. Analysing the precedents is familiar to us as it is utilized in everyday interpretation of regulations and allows to take a look at the cases that do occur in the society and apply to the specific events. In that sense, the precedents seem to be the decent source for establishing the appropriate criterion. To sum it all, it will be most appropriate to utilize the precedents-analysis for crystalizing the criterion for duty to exercisea reasonable care.

성범죄에 대한 사회제도적 대응방안

정혜욱(Choung, Hye-Uk) 중앙대학교 법학연구원 2011 法學論文集 Vol.35 No.2

This essay had started from a proposition that the best way to prevent crime is to punish all the criminal acts without exception. For a criminal act to be punished, it first has to be investigated and prosecuted. Most sexual crime investigations start from reporting. However, the problem is that reporting rate is only low as 12.35%. Therefore, in order to effectively prevent sexual crimes, one must find the reason behind the low reporting rate and the way to eliminate it. The survey had been ran under the hypothesis that women believe exposing their history of being sexual crime victims would have a negative influence on their successiveness of the marriage life. The result confirmed such belief. Women fear the negative influence on their marriage because, from their point of view, who the spouse is has decisive effect on their lives and men prefer women with no previous sexual experience as their spouses. Having said this, number of things must be done to free them from report-preventing psychological pressures: Firstly, women must be welcomed to enter the public affairs; Secondly, the ideology of virginal purity must be mitigated; And thirdly, there needs a way to prevent them from having secondary damage. To promote women's entry into the public affairs, they must be free from child care pressure. Social cooperative child care system can help this enormously. The Equal Employment Opportunity Act has some provisions to carry out such system but the society still needs a more effective measure. On the other hand, women employment should also be improved actively because it is very hard to reform the current unfair system just by passively non-discriminating. To mitigate the virginal purity ideology, criminal penalties that foster such category. In these days, the general social consciousness is turning over to the legalization of both penalties and it seems that the adultery would be legalized prior to the prostitution. Lastly, secondary damage should be systematically prevented. The secondary damage is the direct cause for the low reporting rate. As of now, the participants of the investigation and the trial are prohibited from leaking out the classified informations and are punished upon doing so. However, damaging one's personality and honor is not completely prohibited yet. Since improving this regulation is quite limited, the introduction of victim's attorney system would be more appropriate. In the end, the criminal justice system is expected to function in a way to prevent sexual crimes effectively by improving reporting rate through revising regulations and adapting better systems mentioned above.

개인정보보호법상의 형사처벌 규정에 관한 연구

정혜욱(Choung, Hye-Uk) 중앙대학교 법학연구원 2011 法學論文集 Vol.35 No.3

Previously, Korean personal information protection was considered to be incomplete for covering only the public affairs. On September 30th, 2011, however, Korea enacted personal information protection act and extended its coverage by including private affairs. Since then, Korean personal information protection has become an intact system. The momentum for this extension of the protection range was served by the major personal information leakages centered on the private enterprises. ‘SK Broadband’, ‘Auction online auctioning site’, ‘Hyundai Capital’ cases are the few examples. legal benefit the personal information protection act essentially protects is the rights of informational self-determination. The rights of informational self-determination directly originated from the privacy act, article 17 of the constitutional law. Similar to tranquility of the habitat, personal information falls into the area of privacy and therefore is the subject of constitutional protection. Even though the protection for personal information is the fundamental human rights prescribed by the constitutional law, the absence of practical act to support its protection led to deal its violation only by civil means.as personal information protection law is enacted along with corresponding penalty, the rights of informational self-determination became one of the fundamental human rights that is directly protected by the constitutional law. Violation of the rights of informational self-determination has the property of intruding the control of personal information by the subject of rights. According to this property, the collection and processing of the personal information under the subject’s consent is exempted from the punishment.there exists an opposition between how one would describe the exemption of the penalty under consent of the subject of information. One is by distinguishing between agreement which removes the elements of an offense and approval which precludes the wrongfulness. The other one is by deciding either on the circumstances of the removing the elements of an offence or the circumstances precluding wrongfulness. For the latter case, it is often said that it is practically impossible to distinguish between approval and agreement and that no benefit arises from such distinction. However, this is not the case. the violation of the rights of informational self-determination, the consent of the information subject should be considered as agreement that removes the elements of an offence. This is analogous to theft where the violation of ownership of the goods occur. For example, if the owner of goods gives consent and the other acquires them, the elements of an offence are not comprisable.offender of the violation of the rights of informational self-determination is fundamentally the information processor. Here, the information processor can be public institution, corporation, organization, or individuals, etc. who, for business purposes, wish to process personal information by themselves or through the means of other people. According to this definition, all the people who process personal information is the offender. The basic structure of the system is as follows. The person in charge of the information processing is subjected to punishment as offender and the corresponding corporation or organization is fined only when it is subjected to penalty against employer and employee.the violation of the rights of informational self-determination is subjected to punishment except the collection of information without consent. In regards to collection, if the collector does not receive consent from the information subject, only the fine will be levied on him. However, if he commits fraud while obtaining consents, he is subjected to punishment.

명예훼손과 표현의 자유

정혜욱(Choung Hye Uk) 원광대학교 법학연구소 2018 圓光法學 Vol.34 No.3

표현의 자유를 최대한 보장한다는 취지에서 사실을 적시하는 내용의 명예훼손 행위는 처벌대상에서 제외시켜야 할 것인가를 검토해 보았다. 이 문제는 사실을 적시하는 것은 항상 정당한 일인가 하는 의문으로 연결된다. 표현의 자유가 매우 중요한 기본권 가운데 하나이지만 절대적으로 보장되는 최상의 기본권은 아니다. 다른 기본권을 침해하는 경우에는 표현의 자유도 어느 정도 양보를 해야만 할 것이다. 그러한 측면에서 진실한 사실이라고 하더라도 공익성이 없으면 이를 적시함으로써 타인의 명예를 훼손하는 것이 곤란하다. 공익성은 ① 적시 대상 행위가 해당 행위자 또는 제3의 잠재적 행위자에 의해서 반복될 수 있는 유형에 해당하고, ② 사실적시를 통해서 보호하고자 하는 공적 이익이 사실적시를 통해 침해되는 사적 이익보다 본질적으로 우월한 경우에 인정된다. 사회적 유해성에 논란이 있는 행위에 대한 사실의 적시는 공익성이 인정되지 않는다. 따라서 성매매, 간통 또는 동성애 등의 사실을 적시하는 행위는 과도한 사생활의 자유와 비밀 침해에 해당하고 명예훼손이 된다. 현행법상 명예훼손죄 처벌규정은 형법전과 정보통신망법에 나누어 마련되어 있다. 이들 범죄유형 가운데 기본구성요건은 형법 제307조 제1항의 단순 명예훼손이다. 진실한 사실을 말하는데도 이를 처벌대상으로 하면 표현의 자유를 지나치게 위축시킨다는 측면에서 마련되어 있는 것이 형법 제310조의 위법성 조각사유이다. 이 조항은 사실의 진실성과 사실의 공익성을 성립요건으로 정하고 있다. 이러한 명예훼손 특유의 위법성 조각사유는 일단 기본구성요건인 제307조 제1항의 단순 명예훼손에 적용됨이 분명하다. 그리고 논리적으로 나머지 변형구성요건들도 기본구성요건을 공통요소로 하고 있으므로 당연히 적용대상이라고 보는 것이 마땅하다. 한편 변형구성요건에는 ‘비방할 목적’이 성립요건으로 추가되어 있는데 비방할 목적은 공익성과 양립할 수 없는 개념이다. 어차피 사실적시가 공익성이 없으면 처벌대상이고 공익성 없음과 비방할 목적이 동의어라면 해당 문구는 규정에서 삭제해도 좋을 듯하다. In order to maximize the freedom of expression, we examined whether the act of defamation that tells the truth should be excluded from punishment. This problem is linked to the question of whether it is always legitimate to speak the truth. Freedom of expression is one of the most important fundamental rights, but it is not the absolute right of fundamental rights. In the case of infringing other fundamental rights, the freedom of expression must be conceded to some extent. In such a case, even if it is a true fact, if there is no public interest, it is difficult to undermine the honor of others by showing it. The public interest is recognized in the following cases: (1) the act corresponds to a type that can be repeated by the actor or the third potential actor, (2) the private interest that the public interest to protect through realistic poetry is infringed through facts If it is inherently superior to profit. According to the current law, punishment for defamation is divided into the criminal law and the information and communication network law. The basic constituent of these types of crimes is the simple defamation of Article 307 (1) of the Penal Code. The remainder are the constitutional elements of change. Are the points indicated true or false or are the means of speaking in general or are subject to heavy penalties according to special cases such as publications or information networks. It is the reason for the exclusion of the illegality of Article 310 of the Criminal Act that the freedom of expression is excessively shrunk if it is objected to the punishment even if it is true. This provision establishes the truthfulness of the facts and the public interest of the facts. It is clear that the grounds for exclusion of such illegal defamation are applied to simple defamation of Article 307 (1), which is a basic constitutional requirement. And, logically, the rest of the variant constitutional elements also have basic constitutional requirements as a common factor, so it deserves to be regarded as a matter of course.

아동대상성범죄의 근본원인과 그에 따른 대책

정혜욱(Choung, Hyeuk) 한국피해자학회 2012 被害者學硏究 Vol.20 No.1

Child sexual abuse is a form of very brutal and nasty crime where a vulnerable and defenceless children are targeted. Statistically, child sexual abuse accounts for about 5.9% of all sexual abuses where 1,175 cases had occurred in 2010. Since only about 16% of the total population are children, number of occurrences is not a big problem. However, second conviction rate for child sexual abuse is 59.2%, that is, 20% higher than the general sexual abuses. In other words, child sexual abuse is one of the high second conviction crimes. all things, child sexual abuse is problematic in a sense that it poses great harm on abused child's life and body. Also, because child sexual abuse leaves psychological trauma that is difficult to cure even after the child matures, it must be rooted out.common characteristic of the child sexual abuse offenders can be described as pedophilia. This condition is usually the result of inferiority complex arising from failed interpersonal relationships. In look out for sexual partner after the loss of confidence by failed relationships with adult female, they end up selecting the easy, defenceless children as their targets.sexual abuse offenders can be categorized into 3 types: regression, permanent, sadism. Regression type is where one has not yet entirely given up on relationships with adult female but has, in large portion, regressed to pedophile. Permanent type is someone who entirely gave up on normal sexual relationships and became a complete pedophile. The most serious and dangerous type is sadism where one does no longer satisfy from oppressive intercourses and discovers his superiority and satisfies through inflicting pain on others.of what type they are, they all have inferiority complex which they have gained from failed interpersonal relationships. It is this inferiority complex why they strategically choose children for their crimes. Because of their inferiority complex, they possess a danger of becoming outrageous when children intensely resist and end up killing or seriously injuring them. Such physical damage along with psychological trauma is the common characteristics of child sexual abuse cases.because children have difficulty resisting against sexual abuses due to their physical inferiority, they require high level protection. In the same manner, people who lack defence ability due to mental retardation also requires the same kind of protection. Therefore, the concept of child should include not only physical age but mental age as well. Therefore, a person under the physical or mental age of 13 should be considered as at-risk child.children, including those mentally retarded, become the targets of child sexual abuse because they can easily be oppressed. In order to turn this table around, the condition has to change so that the children are no longer considered an easy-target. The solution can be summed up to 4 ways in which prevent the approach of potential offenders toward the children: ① electronic monitoring system, ② publication of identities, ③ loss of parental rights, and ④ restriction on employment.the other hand, children should also be prevented from being left alone with no protection. In order to do this, ① legislating the prohibition of guardian's act of leaving children alone, ② making guardian accompaniment of children when returning home a legal obligation, and ③ system for outside monitoring on the facilities for handicapped are necessary. Furthermore, there is a high chance of child sexual abuse victims receiving additional damages from the society even after the actual crime. The most important thing to do to prevent such secondary damage is to ① keep the case confidential. Also, ② child sexual abuse special investigation unit should be formed so as to avoid intrusion from investigation agency. Likewise, because children have difficulty responding during the investigation or the trial, ③ victim's attorney system should be incorporated. Lastly, ④