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정보절도범죄에 관한 실효적 대응방안 -특히 2015년 일본 부정경쟁방지법 개정법의 내용을 중심으로-
도중진(TOH JOONG JIN) 한국형사정책학회 2016 刑事政策 Vol.28 No.1
There could be some discussion of criminalization as the spying or computer hacking continues, and lifetime employment falls and debates between company and employee are increasing. On the revised Act 2003, penalty on trade secret piracy was added. On the revised Act 2005, penalty on retired employee’s leaking of trade secret and dual liability on corporate body were also added. Also, the Act 2005 fortified punishment of foreign criminal and second acquisitor as Principals. In 2015, the Act erased the punishment of attempted and personal accusation in Infringement on Secrecy and punished additionally usage of trade secret in abroad and founded the randomly forfeit of corruption profits. On this paper, I would consider effective measures on information theft(Infringement on Secrecy) on Unfair Competition Prevention and Trade Secret Protection Act based on analyzing the Japan’s Unfair Competition Prevention’s revision trend and Japan’s judical precedent.
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도중진(Toh, Joong-Jin) 한국형사소송법학회 2019 형사소송 이론과 실무 Vol.11 No.1
오늘날 세계 각국은 죽음이 발생하면 이를 조사하여 그 죽음이 정당하고 개인의 권리가 침해되지 않도록 각국의 고유한 문화와 전통적 법률체계에 입각한 효율적인 사인확인제도인 검시제도를 운용하고 있다. 이는 영미법계의 전담검시제도와 대륙법계의 겸임검시제도로 구분할 수 있는데, 우리나라는 대륙법계의 전통에 따라 겸임검시제도를 취하면서 검사가 검시의 주체가 되고 모든 변사체가 수사기관에 신고되어 검시가 행하여지며 범죄와 관련되거나 또는 그러한 가능성이 있는 경우 수사기관의 청구에 의하여 법원으로부터 영장을 발부받아 부검을 시행하는 사법검시 위주로 제도가 운영되고 있는 실정이다. 그러나 우리나라의 현행 검시제도는 주요국의 검시제도와 비교할 때 제도적 체계성과 정교성이 낙후되어 있을 뿐만 아니라, 현행법상 검시의 책임자나 변사자에 대한 검시업무를 사실상 주도적으로 담당하고 있는 검시관여경찰관 등이 비전문가이기 때문에 전문성이 결여되어 있으며, 복잡한 절차로 부검처리절차의 지연에 따라 검시의 정확성과 신속성이 떨어지고, 검시에 경찰관·의사·검사·판사 등이 직·간접으로 관여함으로써 책임이 분산되어 있다는 문제점을 안고 있다. 이러한 검시제도의 문제점은 국가의 엄정한 사법기능을 부분적으로 불가능하게 만들거나 약화시키고 나아가 국민에게 사법기관이 억울한 죽음을 은폐 또는 방관한다는 인상을 불식시키지 못함으로써 국가의 사법기능에 대한 신뢰를 잃게 만들 우려가 있다. 이러한 인식 아래, 본 논문에서는 현행 변사체 검시제도의 운용상 한계 및 제도적 문제점을 분석하고, 주요국의 법제도에 대한 비교법적 고찰을 통하여 우리 실정에 적합하고 효율적인 변사체 검시제도의 개선방안을 마련하고자 하였다. Death investigation system is established to keep the human rights of those involved and to enhance the credibility of the judicial system as well as to keep the law and order of the society. This objective is to be guaranteed only through quick, responsible, and professional management of the death investigation. This study aim at finding the problems of the death investigation system and at suggesting appropriate measures to improve the death investigation system. Chapter 1 described the objective and methodology of this study as introduction. Chapter 2 reviews the theoretical background with description of the concept and objectives, the classification of the death investigation system. Chapter 3 drew problems of korean death investigation system by examining its practical, institutional and legal limitations through referring to the actual operating condition of our death investigation system and the condition of on-the-spot investigation. Chapter 4 described the concept and objective of death investigation, the development of Oriental, Western and Korean death investigation systems, and the subject and kind of death investigation as theoretical consideration of death investigation system. Chapter 5 four points out the problems of the death investigation system of Korea and possible measures to reform the system. The results indicated that laws governing death investigations are ambiguous. There are not sufficient number of trained forensic pathologists and investigators present. The investigations are conducted under the authority of prosecutors and police therefore physicians do not have independent authority for conducting investigations. The followings are recommended to correct the shortcomings: The first, laws should be amended to clarify circumstances under which an investigation was necessary; who to conduct the investigation; qualification of professionals involved in the investigations; and statutory independence, authority and responsibility of investigators. The second, all prosecutors, judges, police, and physicians who are currently involved in such investigation routinely should be trained in forensic science. The third, all autopsies should be performed by forensic pathologists. and the fourth, all medical schools should establish Department of Forensic Pathology to serve as the regional agency for forensic autopsies and train medical students and other professionals of how to conduct death investigations.
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도중진(Toh Joong-Jin) 한국형사법학회 2008 刑事法硏究 Vol.20 No.1
Illegal profits made from drug, organized and money-laundering crimes are used to maintain and reinforce criminal organizations or are laundered and reinvested in legitimate or illegitimate businesses. To completely remove the economic factors causing such crimes, the offenders should be deprived of all the economic profits they have made from crime. Article 7 of the FATF Forty Recommendations suggest that each nation enact a legislation similar to the corresponding article of the Vienna Convention so as to confiscate laundered assets, benefits made from money-laundering, instruments that are used or to be used for money-laundering, and any other assets equivalent to those assets. The current criminal law, however, stipulates that only the assets resulting or obtained from criminal acts are subject to forfeiture, leading to problems such as the very narrow range of confiscatable assets and the need to prove that the assets to be confiscated have been obtained from or related to a certain crime. Those problems make difficult the complete deprivation of criminal profits. Below comes an overview of the problems with our forfeiture laws, followed by an exploration of the possibility of employing the civil forfeiture scheme of the Anglo-American legal systems and a discussion of ways for improving our forfeiture scheme. Prior to employing a new forfeiture scheme, it is required to find ways to balance law enforcement agencies" active and effective crime control through deprivation of criminal profits with the protection of citizens" property rights.
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도중진(Toh, Joong-Jin),박광섭(Park, Kwang-Sub) 한국피해자학회 2013 被害者學硏究 Vol.21 No.2
It has been discussed that the Victim, excluded as bystander or the forgotten in criminal justice, could be treated the subject or could participate in the criminal justice. This phenomenon means that guarantee of human rights in crime victim, restoration of the loss, finding of substantial truths and so on are estimated as criminal policy’s change in paradigm. In Korea’s criminal justice system, to guarantee the victim’s participation in criminal process, the right of accusation, demand of judgement, the right of to be informed, victim statement of opinion are acknowledged, but the victim are still treated the object of the criminal justice, not the party of criminal justice, not a subject of criminal justice. Victim’s participation in criminal justice in U.S.A., Germany and Japan is acknowledged from police investigation, criminal trial to execution of punishment by means of Private Accusation, Conference of Prosecutor, Subsidiary Prosecution, Victim’s Participation, Victim Attorney, Victim Statement of Opinion on Probation and so on. To compare the countries’ systems mentioned above and Korea’s, victim in criminal justice system is not still enough existence as a subject in criminal process but a bystander. It is very important that conversion of awareness on victim of investigation authorities, judge, attorney, and effort of legislation for victim’s substantial participation in criminal justice. To begin with, I suggest the actual remedies for victim's participation in criminal justice. First, the right of to be informed, a basic premise for victim’s participation in criminal process, should be the compulsory statutes in all criminal justice authorities, and Criminal Procedure Law should be revised to verify contents of investigation and objects of investigation. Second, to guarantee aggressively the victim’s participation in criminal process, some institutional equipment should be ready that victim statement in independent process and written statement, statement by authorities rights, reorganization of limitations of victim statement, victim statement on suspension of execution of custody, victim statement of opinion on probation. Third, as a premise to guarantee the victim’s participation, it should be considered that all the regulations for victim’s information and affairs should be regulated in criminal procedure law. Or statement attorney vitalization and sitting with relier should be strengthen. Fourth, Victim-Offender Mediation or Criminal Reconciliation accorded with Restorative Justice should be introduced. Korean criminal justice has the restorative justice before the trial or Compensation Order, but does not explain sufficiently the effects of victim-offender mediation or criminal reconciliation. So, Criminal Procedure Law needs to be revised by means of reducing the punishments or halting the criminal process when victim-offender mediation or criminal reconciliation comes into existence. Fifth, Victim's Participation in criminal process should be introduced, reconsidering the revised bills. Victim's participation should include the indictment after demand of judgement, and revise the participation process that prosecutors are leading, and reorganize the right of victim. Sixth, victim attorney should be introduced to make the victim assisted through criminal process, and court-appointed lawyer, which is carried narrowly, should be widened in all criminal process. Seventh, object of interrogation of a witness needs to be limited to make the victim participating actively in criminal process.
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