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A subject of demand on appropriateness in accordance with social rules is thought to be the most important at behaviors by the consent. In other words, estimate of the action by criminal law shall be discussed not by an actor's internal will but by infringement upon legal interest at outside world. Either purpose or motive of the one who has infringed upon legal interest with consent shall not be considered at the estimate of appropriateness of social rules. Therefore, the subject that shall limit consent by social rules shall be not motives and purposes of the consent but ‘an action that infringes upon legal interest’ in accordance with the consent. What type of infringement upon legal interest does limit justification? The problem is related to ‘scope’ of the demand on appropriateness of social rules. Unless special provisions which punish crimes such as murder and abortion regardless of consent, Article 24 of the Criminal Act shall be applied to the crimes of all of private legal interests considering legislation purpose and systematic position. Majority of the scholars think that infringement upon legal interest of other crime types than aforementioned crimes require appropriateness of social rules, and ‘bodily injury’ with consent can be of problem. Considering various kinds of spectrum of bodily injury, the discussion has reached ‘degree’ of demand on appropriateness of social rules, in other words, scope of the permit of bodily injury subject to the consent.The value and specialty of legal interest of bodily injury subject to the consent can be discussed: But, medical treatment for beauty care, minor bodily injury and others that have minor bodily injury with consent of entity of legal interest need not be protected by the Criminal Act. When bodily injury subject to the consent jeopardizes existence of legal entity to threaten life or equivalent and to be serious, punishment against the action is thought to be admitted despite consent. Article 258(Aggravated Bodily Injury) of the Criminal Act can be used for reference.
The punishment laws and regulations should be strictly interpreted and applied according to phrases based on ‘Nullum crimen sine lege’ principles, and they should not be interpreted excessively in disadvantage of the defendant nor be interpreted analogically, and requirements and/or conditions of attachment of electronic device should be also interpreted in same way. The prosecutors were permitted to ask the court order of attachment of electronic device in accordance with the Act on the Electronic Monitoring of Specific Criminal Offenders when a criminal was admitted to have habit by committing sex violence crime two times or more(including guilty judgment). Majority opinions accepted 'guilty judgment' only: When the court judged whether or not the one who was given request for oder to attachment of electronic device committed sex violence crime two times or more, it should not consider previous record of protective disposition in accordance with the Juvenile Act. On the other hand, minority opinions said that the regulation should be applied at guilty judgment only, so that previous record of protective disposition against sexual violence in accordance with the Juvenile Act should be applied to sex violence crime two times or more. Majority opinion followed not only the Juvenile Act but also protective disposition to be advantageous to the one who was given request for oder to attachment of electronic device: But, ‘committing crime’ was limited to ‘guilty judgment’ except for behavior of corresponding case not to be good from point of view of interpretation of the Criminal Act. Majority opinion said that the one who committed sex violence crime should be punished in accordance with the Act on the Electronic Monitoring of Specific Criminal Offenders depending upon two cases to be unfair, that is to say, guilty judgment in accordance with general criminal procedures and protective disposition in accordance with the Juvenile Act. Judicial precedents of lower court differed to require legislative supplementation.
These days, number of tourists in foreign countries reached 19 million and 7 million Koreans reside and stay in foreign countries along by the trend of globalization and door open policy. With the increase of Korean nationals residing abroad, the number of Korean nationals getting involved in criminal cases or becoming a victim of crimes are also increasing. Kidnap and killing of Korean people in Iraq and Afghanistan, kidnap of Korean crews by pirates in Somalia, and Suspicion of the Chinese government's torture of a North Korean human rights activist can be good examples. Recent murder cases of Korean people in the Philippines evidenced that protection of Korean nationals residing abroad is urgent issue in the area of criminal policy. However, currently there is no legal basis which specifies the Government's obligation of protection of Korean nationals residing abroad stated in the constitution, thereby systematic protection of such individuals have been underdeveloped. Government's responsibility of protecting the people should be prescribed to establish protection system of Korean nationals residing abroad, to protect lives and properties of Korean nationals residing abroad and to guarantee safe activities of Korean nationals residing abroad. The paper investigates advantages and disadvantages of the six bills of Protection of Korean Nationals Residing Abroad Act pending in the 19th National Assembly, and to suggest desirable legislation. This paper can be a basis for enactment of the Protection of Korean Nationals Residing Abroad Act. 오늘날 전 세계적인 세계화・개방화 추세와 우리나라의 국력신장 및 국제교류 증진으로 해외여행객이 연간 1,900만 명, 해외에 거주・체류하는 재외동포가 700만 명을 넘어서고 있다. 국외에서 활동하거나 체류하는 우리 국민이 대폭 늘어나면서 우리 국민들과 관련된 각종 범죄 및 사건・사고가 빈발하고 있는바, 이라크와 아프가니스탄에서의 한국인 납치・살해사건, 소말리아 일대 해적의 한국 선원 납치사건, 예멘 테러사건 및 중국 정부에 의한 북한 인권운동가 김영환씨 고문 의혹 등은 그 대표적인 예라고 할 것이다. 특히 최근 수차례에 걸쳐 발생한 필리핀 거주 한국인에 대한 살인사건은 이제 형사정책적 차원에서도 해외에 거주・체류하는 재외국민보호가 더 이상 미룰 수 없는 현안 과제임을 상기케 하고 있다. 그러나 현재로서는 헌법에 명시된 국가의 재외국민보호 의무를 구체화하고 있는 근거 법률이 없어 재외국민의 체계적 보호를 위한 시스템 및 제도가 매우 취약한 실정에 있다. 따라서 재외국민이 처할 수 있는 범죄 등 해외 위난상황에 대비하여 국가의 구체적인 국민보호 의무를 규정하고 재외국민보호체계를 확립함으로써 재외국민의 생명과 재산을 보호하고 나아가 국민의 안전한 해외활동을 보장할 필요가 있다.
The purpose of preparatory proceedings is to find out intensive and effective judicial proceedings of trial date subject to realization of court-oriented trials. The preparatory proceedings can keep point of issue as well as evidence of the case in order in advance to make judicial proceedings plan and to help have effective criminal trial: But, the preparatory proceedings may have preliminary procedure being similar to judicial proceedings to produce form of trial procedure and to have infringement upon defendant's basic rights of the Constitution such as refusal rights of statement and to require careful approach of formation and operation of the system. The preparatory proceedings does not assert nor evidence substance of a case in accordance with the principle of exclusion of presupposition, and it shall not deal with important matters that may have influence upon trials in the future, for instance, permission of changes of indictment, ruling on application for evidence and decision on the discovery, etc. And, the protocol in preparation for the trial that is admitted to have absolute admissibility of evidence shall exclude substance and fill out matters that are required to make issues of a case and to keep evidence in order and to make plan of evidence. The regulation of submission in writing at preparatory proceedings may have infringement upon refusal rights of statement of the defendant so that the defendant shall be allowed to be given help from a lawyer at submission in writing: In particular, the written opinion shall not ask for statement on admission of the facts concerning the public prosecution. And, decision on submission to the preparatory proceedings had better reflect concerned party's ideas through either hearing of concerned party's ideas or appeal of dissatisfaction of court judgment, and standard of the submission should be made to obtain forecast of sending to the court. The preparatory proceedings may have the greatest difference of legal effects at prohibition of post-application of evidence. In this regard, a way should be found out to respect regulations of existing laws and to lessen adverse effects of regulations of prohibition of post-application of evidence as much as possible. When the court admits of needs, it can investigate evidence at its discretion or alleviate standards of interpretation of reasons of the exception at prima facie evidence: Otherwise, the court may give concerned party an opportunity of application to the evidence after resuming preparation for the trial.
'스콜라' 이용 시 소속기관이 구독 중이 아닌 경우, 오후 4시부터 익일 오전 7시까지 원문보기가 가능합니다.
The personal data protection could be examined from two points of view, in other words, preparation for preliminary base and establishment of post supplementation. The infringement of personal data required compensation for damages and other post remedial measures of damages: Fundamental measure was demanded to block the infringement of personal data in advance and to require not only construction of legal system for private data protection but also enactment of basic laws. The legislation of personal data protection could be classified into three, in other words, integration, separation and individual area, etc: The legislation in Korea was based on separation because it was divided into public area and private area. On the other hand, the private area was based on individual area because it was regulated by individual laws. Both public area and private area had different governing laws and regulations to be difficult to regulate both areas legally and effectively and to create unconformity between laws and regulations. Therefore, the dual legislation was given a lot of criticism to let the Government as well as NGO make efforts to improve systems and lay a bill of the integrated personal data protection before the National Assembly. This study tried to compare existing laws about information & communications and to analyze advantages and disadvantages of the laws, and also tried to suggest reasonable improvement.
The Criminal Act has regulations of criminal punishment against illegal use of authenticated document. The one who has made out document without authority and/or false document with authority shall be punished in the use of document. But, punishment against use of document truly made by authorized person is thought to be exceptional considering benefit of document crime of “public reliability on the document.” Then, what’s the meaning of“unlawful uttering” may be of problem. Supreme Court's judicial precedent has adopted not only authority of use of document but also original usage of document to judge illegal use and has made four cases to have different legal judgment. But this study adopted authority of use of document as an only standard for unlawful uttering considering differences depending upon rights in document crimes, and interpretation of various kinds of ‘illegal use’ from point of view of the Criminal Act and related special laws. Unlawful uttering has no reason to judge depending upon original usage of the document, and extends scope of punishment at punishment against unlawful uttering of document up to other purpose of use. The loss and damage at other purpose of use is out of scope of legal benefit of unlawful uttering is thought to be inappropriate. To admit of unlawful uttering from point of view of Supreme Court's judicial precedent, expansion of scope of original usage may expand scope of the punishment to violate principle of Nullum Crimen, Nulla Poena Sine Lege. In this case, Supreme Court's judgment that did not admit of unlawful uttering was thought to be appropriate, but Supreme Court's basic position that followed judgment standard of original usage than authority of the use should be reconsidered.
‘범죄’가 무엇인지에 대하여 종래 견해의 대립이 있었으나 20 세기 초반 이후 범죄의 성립 여부는 구성요건해당성, 위법성, 책 임의 3단계를 거쳐 검토되어야 한다는 3단계 범죄론체계가 주류적인 견해로 받아들여지게 되었다. 구성요건(Tatbestand)이란 형벌의 근거가 되는 행위유형을 기술한 것을, 구성요건해당성은 구체적인 행위가 이러한 객관적인 법률상 요건과 일치하는 것을 말한다. 위법성(Rechtwidrigkeit)은 구성요건에 해당하는 행위가 법질서 전체의 관점에서 허용되지 않음을 의미하며, 책임 (Schuld)은 구성요건에 해당하는 위법한 행위에 대하여 행위자를 개인적으로 비난할 수 있느냐의 문제를 말한다. 3단계 범죄론체 계에서는 이 세 가지가 모두 구비되어야 비로소 범죄가 ‘성립’ 되었다고 한다. 3단계 범죄론체계 중 위법성과 책임의 단계는 구성요건에 해당하는 행위이지만 예외적으로 사회적 허용성이 인정되거나 개인적 비난가능성이 없는 경우를 걸러내는 형태, 즉 구성요건해당행위 에 내포된 위법성을 배제하여 위법한 행위를 정당화(justification) 하거나, 구성요건해당행위에 대해 가해지는 책임비난을 면제 (excuse)하는 형태로 구성되어 있다. 이처럼 범죄의 성립을 저지하는 사유를 강학상 ‘정당화사유 또는 위법성조각사유’ 및 ‘면책 사유 또는 책임조각·감경사유’라 한다. 이 논문에서는 주요 선진국의 정당화사유 및 면책사유에 관한 입법례를 살펴보고 이들을 통해 우리 입법의 타당성 및 우수성을 검토함으로써, 현행법의 합리적 개선방안을 모색해 보고자 한다. In contrast to the Continental Criminal Law, AngloAmerican Criminal Law has developed from case law. Therefore the system or legal theory between the two legal system is quite different. So with the justifications. In Continental Criminal Law, there are legal defense, necessity, defense of claim, victim's consent and legitimacy; in AngloAmerican Criminal Law selfdefense, defense ofotherparties, defense of property, defense of habitation, necessity, and legal enforcement defense. A justification defense is one that indicates society's belief that the defendant's conduct was morally good, socially desirable, or not wrongful. In order to establish selfdefense, the defendant may be required to prove that the defendant was not the aggressor; the defendant reasonably perceived an immediate threat of bodily harm; the defendant reasonably believed that the defensive force was necessary to avoid the harm; and the amount of defensive force used was reasonable. The provision of the justifiable act could function many things as belows; according criminal law to common sense, making reasonable criminal law, applicating criminal law as right time etc. So we should interpret the provision of the justifiable act actively and widely. If we can regulate the illegal act with civil law, administrative law besides criminal law, we have to apply more mitigative law.