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황태정(Hwang Tae-Jeong) 한국형사법학회 2007 刑事法硏究 Vol.19 No.4
A few years ago, The Supreme Court of Korea gave a decision upon the use of KT card(deferred payment telephone card issued by Korea Telecom), denying unlawful use of facilities for convenience(§348-2) and admitting unlawful uttering of private document(§236). I think that the argument of the decision is not appropriate in two points of view.<BR> First of all, It is not rational to admit unlawful uttering of private document. When we use KT card in public telephone, only magnetic stripe of the card is uttered. Criminal Act of Korea has a provisions to punish falsification or alteration of electromagnetic records(§227-2, §232-2), uttering falsified or altered electromagnetic records(§229, §234) and unlawful uttering of official or private document(§230, §236). But the Act does not have a provision to punish unlawful uttering of electromagnetic records.<BR> Secondly, unlawful uttering of KT card should be valued not only from social point of view but individual point of view. It is very important value to protect individual property as well as to protect social reliance on document. In this case, the accused uttered other person"s KT card without paying price, acquired benefits to property and caused loss to telecomunication service provider or the owner of KT card. For that reason, I think it is needed to admit unlawful use of facilities for convenience in this case.
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황태정(Hwang, Tae-Jeong) 한국형사법학회 2010 刑事法硏究 Vol.22 No.1
Personal legal interest shall not be principally punished when victim consents to infringement upon his own legal interest. The consent that has been made by either violence and threat or deception and misunderstanding may have problem of legal effect because it has not been made based on truly free will of legal interest entity. The paper has discussed legal effect of the consent made by misunderstanding. Theories are divided into three: theory of serious misunderstanding(theory of subjective real intention), theory of misunderstanding of the motives and theory of legal interest related misunderstanding, depending upon situation that an misunderstanding has been made. The consent based on misunderstanding of ‘legal interest itself’ of legal interest entity shall be null and void, and the consent made by misunderstanding of ‘incidental circumstances such as motives and purposes’ shall be effective according to theory of legal interest related misunderstanding that is thought to be the most appropriate. However, theory of legal interest related misunderstanding may be difficult to consistently explain specific case such as ‘misunderstanding of emergent situation’. Some of scholars admit of an exception that theory of legal interest related misunderstanding cannot solve all of the cases: However, different theory construction of each case that can maintain theoretical structure of theory of legal interest related misunderstanding is thought to be desirable. So called ‘the case of killing of wild beasts’ has shown that objective value of wild beasts can be lowered under emergent situation to decrease needs of legal interest protection. Therefore, a breeder who has consented killing of wild beasts by deceptive behavior may have misunderstanding of legal interest relations to nullify consent. So called ‘the case of corneal transplant’, however, does not deteriorate legal interest values even at existence of emergent situation to let legal interest entity have freedom of disposal of legal interest so that it may be different from the case of killing of wild beasts. The resolution may have many opinions: But the opinion nullifying consent that an error of ‘general value system’ is regarded to be that of legal interest relations is thought to be the most appropriate considering maintenance of theory of legal interest related misunderstanding.
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황태정 ( Tae Jeong Hwang ) 한국형사정책학회 2006 刑事政策 Vol.18 No.2
The Act on the Lapse of Criminal Sentences had no regulation on how to terminate a case when materials of investigation cards were not made out. Even before registering materials of investigation cards in E-CRIS (Electronic Criminal Record Identification System), contents of the materials of investigation cards included important personal information and investigation of a suspect to regulate legal basis management at the stage of preparation, deletion and repeal, etc. The law in force had a basis of the existence of the materials of investigation cards made by special judicial police official by the Act on the Lapse of Criminal Sentences and its Enforcement Decree, and it had no legal basis of concrete contents. Therefore, the laws and regulations on preparation of the materials of investigation cards of special judicial police official should be newly enacted or applications of preparation of existing materials of investigation cards were demanded to specify special judicial police management. Previous criminal records were illegally inquired mainly because the Act on the Lapse of Criminal Sentences and other laws and regulations regulated references and reply of previous criminal records here and there. Therefore, laws and regulations on references and reply of previous criminal records were required to regulate types, scope and limitation of previous criminal records by single law, that is to say, the Act on the Lapse of Criminal Sentences. Considering basic spirit of the Act on the Lapse of Criminal Sentences, the law had better include positive list that regulated references and reply of previous criminal records within laws and regulations. As explained before, regulations of references and reply of previous criminal records were required to specify them by the Act on the Lapse of Criminal Sentences: When enactment was made, the Enforcement Decree of the law was required to specify inquiry and scope of reply, etc clearly. Legislation of inquiry as well as division of the scope of inquiry could prevent illegal references and reply indirectly, while reinforced punishment of the one who did illegal references and reply of previous criminal records could do directly. To protect personal information and privacy effectively, legal punishment and sentence were demanded to reinforce against illegal references and reply. The punishment with a fine that mostly consisted of minor crimes was required to exclude previous criminal records below than a certain money value from the materials of criminal records and to include them in the materials of criminal records that could not be included in previous criminal records. In the case, the judicial police officer was permitted not to make out materials of investigation cards to meet legislative purposes of the Act on the Lapse of Criminal Sentences for the ones who were given summary judgment. When legal period elapsed, the Act on the Lapse of Criminal Sentences could delete materials of investigation records. And, the law limited scope of the deletion so much not to meet legislative purposes. When criminal investigation records could be deleted immediately, scope of legal punishment should be reduced to expand scope of the deletion and to remove criminal investigation records of minor crimes as soon as possible and to alleviate psychological burden of a suspect and meet legislative purposes of the law.
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