간행물

형사정책 update

Korean Journal of Criminology

  • : 한국형사정책학회
  • : 사회과학분야  >  법학
  • : KCI등재
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  • : 연속간행물
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  • : 1226-2595
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수록정보
수록범위 : 1권0호(1986)~31권3호(2019) |수록논문 수 : 685
형사정책
31권3호(2019년 10월) 수록논문
최근 권호 논문
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KCI등재

1영국 반사회적 행동에 대한 대응제도의 시사점 - 형사 절차·처벌 유예제도에 대한 새로운 접근법 -

저자 : 박경규 ( Park Kyung-gyu )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 3호 발행 연도 : 2019 페이지 : pp. 7-32 (26 pages)

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Since 1998, the UK tries to prevent serious crimes by doing that the Government introduced administrative, judiciary and commnunitybased countermeasures to an anti-social behaviour which enable for the Government to take effective actions to anti-social behaviour. That is to say, the Government puts forth an effort to prevent the becoming of the victim of serious crimes.
Our system of suspended criminal proceeding or punishment doesn't have powerful deterrence effect, because suspended proceeding has to be continued or the suspended sentence has to be executed at best even though the offender have not complied with a condition imposed. The CBO regime in the UK gives us a useful approach to find a method of improving our system of suspending criminal proceeding or punishment. That is to say, in certain cases we can punish the offender with more severe sentence if the offender have not complied with an imposed condition in case of conditional discharge.

KCI등재

2강력범죄 피의자 신상공개제도에 대한 비판적 검토

저자 : 박찬걸 ( Park Chan-geol ) , 정광진 ( Jeong Kwang-jin )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 3호 발행 연도 : 2019 페이지 : pp. 33-55 (23 pages)

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Our country maintained the posture of disclosing the identity of violent crime suspects in detail until the 1990s. In the wake of a female middle schooler sex violence incident at Miryang in 2004, personal information of assailant students was disclosed, prompting the controversy on human rights violation, and police, in order to protect human rights of the suspects, avoided the identity disclosure for the suspects by covering them with caps and masks. As in October 4, 2005, 'Rules of Police Officers for Human Rights Protection' and 'Regulations for Human Rights Protection' were enacted, investigation agencies began not to disclose personal information of suspects such as face. And National Human Rights Commission of the ROK also ruled that disclosure of the identity of suspects in the course of investigation prior to indictment violated personality rights and portrait rights.
But as, around 2010, violent crimes repeatedly continued to take place, public opinion was again in favor of disclosing the identity of suspects. Particularly Chosun Ilbo and Joongang Ilbo disclosed the face of Kang XSun in January 31, 2009, breaking the practice of not disclosing the identity of the suspects until being found guilty. This triggered the controversy about disclosing the face of suspects. Then, in March 2010, the face of Kim XTae was disclosed in many media outlets, resulting in the disclosing the identity of suspects as a practice. Positively reflecting people's sentiments and media's movement as such, the National Assembly newly enacted Clause 8-2 'Special Cases regarding Punishment of Certain Violent Crimes' to prepare the base regulation regarding the disclosure of suspect's face.
The issue of whether or not to disclose the identity of violent crime suspects as above has become the national interest whenever a specific incident took place. And as a matter of fact, currently plenty of legal and policy-wise issues are being pointed out in the process of the enforcement. Under the circumstances, this study sought to point out the issues in detail focused on the content and operating state of the current system of disclosing the identity of violent crime suspects. ① Related with the principle of presumption of innocence ② Related with inconsistent disclosure focused on the criteria of judgment, the main principal of judgment, period of going public, method of going public ③ Related with the purpose of the identity disclosure system focused on guaranty of people's right to know, prevention of repeated crimes, prevention of crimes, finding of additional criminal facts ④ Related with due process focused on lack of securing appeal right, lack of control by the judiciary, formality of defining the system, causing harm to the suspect's family. The study, rather than suggesting the reasonable methods to improve the current system, ultimately would like to argue in favor of complete abolition of the current system of disclosing the identity of violent crime suspects.

KCI등재

3뇌과학 영상기반의 사이코패스 연구와 형사정책적 과제

저자 : 이인영 ( Lee In Young )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 3호 발행 연도 : 2019 페이지 : pp. 59-84 (26 pages)

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Psychopathy is a complex personality disorder that includes interpersonal and affective traits such as glibness, lack of empathy, guilt or remorse, shallow affect, and irresponsibility, and behavioral characteristics such as impulsivity, poor behavioral control, and promiscuity. Much is known about the assessment of psychopathy; however, relatively little is understood about the relevant brain disturbances. Brain research on psychopathy may affect punishment, prediction, and interventions. The combination of structural and functional abnormalities provides compelling evidence that the dysfunction observed in this crucial social-emotional circuitry is a stable characteristic of our psychopathic offenders. This study shows directly - that there is a specific brain abnormality associated with criminal psychopathy. psychopaths lack moral rationality and that severe psychopaths should be excused from crimes that violate the moral rights of others.

KCI등재

4검찰개혁 이후 수사권 분산의 체계와 과제 -특사경과 자치경찰을 중심으로-

저자 : 윤동호 ( Yun Dong-ho )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 3호 발행 연도 : 2019 페이지 : pp. 85-121 (37 pages)

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The contents of this article are as follows. First, this article will look into how investigative organizations are established and reorganized according to the readjustment of investigation power between police and prosecutors, the establishment of Independent Investigative Agency against High-ranking public officials' crimes and National Investigation Division and the expansion and implementation of municipal police system. Second, this article analyzes how the investigation power are distributed to various investigation organizations. Third, If there is a conflict between such decentralized investigation power, the suspect is examined by which investigation organization. Lastly, it suggests what is needed in the future to enhance the rationality of the more advanced human rights-friendly investigation power and the decentralization system of investigation power.
The key point of this study is that efforts to est-ablish a smooth cooperation system between investigation organizations are more urgent and important than efforts to- clearly establish the relations of investigation powers among various investigation organizations.

KCI등재

5임신중단 규제에 대한 국민적 합의의 필요 - 도구성 극복과 휴머니즘 회복 -

저자 : 손지선 ( Son Jee-seon )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 3호 발행 연도 : 2019 페이지 : pp. 123-166 (44 pages)

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This thesis worries that the request of the Constitutional Court of 2019.4.11 to the legislature about the improved legislation to penalize a pregnant for terminating the pregnancy after 22-week gestation period may restrict again the right of self determination of female which is acknowledged barely. Therefore this thesis aims to demonstrate that the punishment by the Criminal Law should not be allowed, that the regulation of the abortion by 'the Criminal Law-the Mother and Child Health Law' combination format should be abolished and the regulation should be delegated to the nation through the procedure of the substantial national consensus. This thesis tries to establish the correlation of the criminal abortion instrumentalised by the nation with the necessity of the abolition of the law, by applying the Max Horkheimer's critic of the instrumental reason which seeks to objectify and progress the instrumentation of the reason through its self-criticizm. In order to do supra, this thesis endeavors to expiscate the things ① which the thought process of 'females are humanbeings' is removed in the process of acknowledging 'the right of the fetal life' as the basis of the existence of the criminal abortion by the court, ② which females are excluded from 'the right of the human dignity and value' and 'the right to pursue happiness' in the Constitution because of ①, ③ which the two-way race of 'the right of fetal life vs. the right of self determination of female' is the output that is missing out 'the maternal instinct recongnition sensitivity', and ④ which the content about the deliberation and determination of a pregnant woman for the fatal life and living after the birth is included among the right of self determination of female by proposing 'the right of fetal profit determination of the pregnant woman'. At last, this thesis attempts to illuminate the things, even if the criminal abortion has to be abolished for the above mentioned reasons, ① which the female-centerd reason has to take care not to disvalue the fetal life through self-criticism, as Horkheimer demands the constant self-criticism of the reason in his denial philosophy, and ② which this thesis counts on the gender community progressing dialectically through interaction toward the gender equality.

KCI등재

6성매매규제와 연령기준

저자 : 이성대 ( Lee Sungdae ) , 송봉규 ( Song Bong Gyu )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 3호 발행 연도 : 2019 페이지 : pp. 167-190 (24 pages)

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It can refer to policies on the age standards of victims of prostitution as a subject that is often problematic in relation to the regulation on prostitution. In particular, Article 8-2 of the Act on the Protection of Youth Sexuality, which was newly enacted through the revision of the Act on the Protection of Sex Trade, set a new standard for the age of actors and victims in the regulation of prostitution, which could lead to a need to review the age standards of victims of prostitution. Although there is room for doubt as to whether the regulation is intended for sex trade, it is judged that sex trafficking regulations cannot be affected by the fact that adultery against people under 13 years of age and under 16 is defined as a criminal act, just as adultery against people under 13 is treated as rape regardless of whether doctors agree or pay for it. In addition, in the area of sexual crimes involving sexual violence and sexual crimes, there are many cases in Korean law that impose different punishment depending on the age of the actor and the perpetrator.
This article intended to review cases related to the regulation of prostitution among various age standards applied in the area of sex crimes. To this end, the change process of major laws related to prostitution was opened with a focus on age standards, and 2 and 3 were reviewed in order to review the current status of age standards under the current Act on the Regulation of Prostitution. 4 Through this, we wanted to present our own view on improving the age standards under the current Act on the Control of Prostitution, which concluded that the components reflected in Article 8-2 of the Act on the Protection of Youth Sexuality were the result of premature death in response to the perception that the sex of children and adolescents over 13 should also be strongly protected. Considering that the age of criminal underage is 14 years old in private opinion, it also proposed a plan to set the standard for the age of 14 on the agenda and to prepare and implement a protective measure gradually for those over that age.

KCI등재

7형사보상에서 국가배상법의 구상권 규정의 준용 필요성

저자 : 김정환 ( Kim Jong Hwan ) , 박성현 ( Park Sung Hyun )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 3호 발행 연도 : 2019 페이지 : pp. 191-214 (24 pages)

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If an individual has been wrongly convicted on the grounds of a tort carried out by a public servant, that individual can either apply for Criminal Compensation or State Compensation, defined in their respective acts. However, if the wronged individual first applies for Criminal Compensation then later files for State Compensation, or if the individual applies only for criminal compensation, the state cannot exercise its right to indemnity as set out in the State Compensation Act, because the act states that such rights can only be applied to compensations paid by the State Compensation Act. The result is that choices made by individuals can result in not only losses for the state but also reflective benefits for those public servants who would otherwise have been subject to indemnity. As there exist cases where wronged individuals apply only for the more easily argued and proven Criminal Compensation, a solution is necessary.
As the State Compensation Act assumes the state itself is responsible for the tortious actions of its servants, it can be said that legally there is no basis for the government to hold the right to indemnity. However, such a right was implemented to suppress the abuse of power and also to support active performance of governmental duties by stating that this right can only be exercised in case of gross negligence or deliberate intent. The Criminal Compensation Act also assumes the state is responsible for the damage caused to wrongly convicted individuals yet does not state the existence of a right to indemnity. To solve this legal gap, it is necessary for the Criminal Compensation Act to also regulate the right to indemnity.
The actual content of this right should simply be an application of that of the State Compensation Act. As in the case of French Criminal Procedure, it is possible that the state could hold the right of indemnity towards those who provide false witness, bring false charges or otherwise distort criminal justice. However, the difference in French and Korean evidence laws as well as legal and historical backgrounds means such regulations would be inappropriate. As the purpose of introducing such rights to indemnity would be to encourage the proper execution of governmental affairs and to deal with the existing legal gap, the proper solution would be to simply apply the right to indemnity as provided in the State Compensation Act to the Criminal Compensation Act.

KCI등재

8사이버 명예훼손죄에 관한 인터넷서비스 제공자의 형사책임

저자 : 박정난 ( Park Jungnan )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 3호 발행 연도 : 2019 페이지 : pp. 215-244 (30 pages)

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Cyber defamation raises the issue of criminal punishment of third-party Internet service providers as well as who have committed the crime themselves. Punishing an Internet service provider under certain conditions is not contrary to the principle of self-responsibility, given that the service provider earns huge amounts of income by providing a publishing space, has significant social influence, and also has the technical ability to control the publication. In fact, foreign countries, including the United States, Germany and Japan, have prepared provisions for the legal liability of Internet service providers in their laws on information and communication networks, and the requirements for the provisions are whether the provider recognizes the expression or not and the technical feasibility of blocking the expression.
On the other hand, Korea does not have the above legal basis, but the Supreme Court recently made clear the requirements of the Internet service provider's liability for civil damages in its ruling. The requirements are: first, the illegality of the post is obvious; second, the victim has made a request for deletion or the provider knew or could know the existence of the post; third, the service provider was allowed to control the postings technologically and economically, and; lastly, the provider left them unattended for a considerable period of time.
The Internet service provider's criminal responsibility is an act of negligence after the article has been posted, he is not a principal offender because he or she/they do not control the crime. It is reasonable to regard it as a crime of aiding and abetting, because due to the nature of cyber defamation, the act of defamation can be considered to continue until the posting is deleted. Scholars argue that the Internet service provider has a safety obligation as the manager of a hazard by virtue of its axiom as the obligation of a crime of omission. However, since the concept is too comprehensive and goes against the principle of clarity and trust, it is deemed reasonable to establish a clear legal basis for the duty, as in foreign countries mentioned above.

KCI등재

9자기도피행위 등에 관여한 행위자의 형사책임

저자 : 이창섭 ( Lee Chang-sup )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 3호 발행 연도 : 2019 페이지 : pp. 245-271 (27 pages)

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In cases of making criminal escape(Article 151 of the Criminal Act), destruction of evidence(Article 155 (1)) and false accusation (Article 156), a perpetrator's self-escaping act, etc. whose effect belongs to himself do not meet the legal elements of the offenses. The accused may not be the subject of perjury(Article 152 (1)). Here it is discussed whether a perpetrator should be punished when he is involved in the act, etc. by anyone else as instigator or accessories. The Supreme Court uses the criterion of 'abuse of defense right', when the Court judges the criminal responsibility of a perpetrator involved in the act, etc. by anyone else. But the Court acknowledges a perpetrator as instigator or accessories of false accusation without using the criteria.
This paper argues as follows: (1) It is not appropriate to judge whether there is the criminal responsibility of a perpetrator involved in the act, etc. by anyone else by using the criterion of 'abuse of defense right' used by the Court or 'self-protection right' asserted by the scholars. (2) It is not reasonable to regard the perpetrator as a man with a negative status and apply Article 33 to his act. But on the case of perjury, Article 33 is applicable to instigating or aiding and abetting perjury by the perpetrator. Because perjury is a crime where person's status is an element. (3) Excluding the case of perjury, the perpetrator could be punished only if lawmakers made a penalty regulation as Article 257 (3) 2 of the German Criminal Act. (4) In conclusion, a perpetrator involved in the self-escaping act, etc. in the crimes where a perpetrator's status is not a element should not be punished.

KCI등재

102019년 제11회 아시아 범죄학회 참가기

저자 : 이인영 , 김혜정 , 주윤오 , 박용철

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 3호 발행 연도 : 2019 페이지 : pp. 275-279 (5 pages)

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1연안해역에서 석유오염물질의 세균학적 분해에 관한 연구

(2006)홍길동 외 1명심리학41회 피인용

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2미국의 비트코인 규제

(2006)홍길동심리학41회 피인용

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2미국의 비트코인 규제

(2006)홍길동41회 피인용

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