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Korean Journal of Criminology

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수록범위 : 1권0호(1986)~31권4호(2020) |수록논문 수 : 692
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31권4호(2020년 01월) 수록논문
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KCI등재

1초국가적 환경범죄에 대한 우리나라 환경형법 적용과 관련된 쟁점

저자 : 김재윤 ( Kim Jae-yoon )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 4호 발행 연도 : 2020 페이지 : pp. 7-35 (29 pages)

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society, is developing into a global Issue. Pollution respects no jurisdictional boundaries and knows no boundaries. Representative examples of such pollution include climate change, ozone depletion, acid rain, fine dust, deforestation and loss of biodiversity. These environmental problems are complex and often interrelated with socio-economic factors. It does not recognize political borders and pose major threats to human safety, health and productivity. Due to these threats to human future, it is essential to address these problems.
The problem of transfrontier environmental pollution is that it is impossible to find a solution by the efforts of a particular country or region. This requires international collaboration on both bilateral and multilateral level and the active participation of all members of the international community.
The international joint efforts to cope with these international environmental issues have given rise to the field of 'international environmental law'. Nowadays, it is building a large area in its character and contents. And in the area of criminal law, the problem of transboundary environmental pollution is dealt with under the name of 'international environmental criminal law' or 'transnational environmental criminal law'.
Therefore, in this paper, we first outline the types of transboundary environmental pollution and the role of transnational environmental criminal law in relation to transboundary environmental pollution (Ⅱ). And this paper examines combination of territorial principle and ubiquity theory, which can expand the scope of domestic (environmental) criminal law for foreign-related crimes, the issue of the application of protectionism under Article 6 of the korean Criminal Code, the validity of presumption of causality, which is provided in Article 11 of Act on Special Measures for the Control of Environmental for easing proof burden of causality, and introduction of cumulative crime to fundamentally resolve the problem of proof difficulties of causality(Ⅲ).
In conclusion, in order to deal with transnational environmental crimes, environmental policy or energy policy, not international environmental criminal law, should be considered as the top priority (Ⅳ).

KCI등재

2환경형법 벌칙규정의 문제점

저자 : 최정학 ( Choi Cheong-hak )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 4호 발행 연도 : 2020 페이지 : pp. 37-74 (38 pages)

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Clearly the environmental crime is becoming more important in these days. Korea has so many different kinds of environment laws with punishing clauses and also special law that has aggravated punishment against some environmental crimes. However, we cannot call these laws “environmental criminal law”, because, in fact, they serve only as a ancillary means for environment administration. Furthermore, both the applying frequency and the intensity of these punishment are not high. The reason is various and complex, but, this essay emphasizes the deficiency of stern attitude of the environment officers, the investigators and the court.
This essay, under the above actual restriction, aims to propose some improving alternatives of punishing clause of environment law. Firstly, too severe punishment of the special law should be alleviated in practical way. Secondly, the punishment against the corporation, in adverse, should be aggravated and separated with that of the final actor. Thirdly, the responsibility of the high officers of the corporation should be incorporated into the law. Finally, some punishing clauses which are unnecessary as a criminal law should be converted to administrative or inbetween criminal and administrative sanction. This essay, especially, put the strong emphasize on the third point, because the punishment of the high officers have seldom been accomplished so far. Moreover, negligence and omission of the officers is theoretically disputable, the responsibility and the duty of management and supervision should be enacted.

KCI등재

3기후변화와 범죄발생: 국내외 연구 추세와 형사정책적 함의

저자 : 라광현 ( Ra Kwang Hyun )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 4호 발행 연도 : 2020 페이지 : pp. 75-95 (21 pages)

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The purpose of this study is to review and examine theories and empirical studies that explain the impact of climate change on crime and to derive policy implications. Unfortunately, theories and empirical studies explaining the relationship between climate and crime are relatively rare. Thus, the current study also included the relationship between weather factors and crime. To date, the empirical relationship between climate or weather and crime has been largely tested using existing criminological concepts and theories. However, Agnew recently proposed a theoretical model of the impact of climate change on crime, and theories on climate, aggression, and self-control are being proposed, and efforts are being made to comprehensively understand the relationship between climate and crime. On the empirical side, the relationship between climate or weather and crime is being actively analyzed in foreign countries. These previous studies generally find a fairly stable positive relationship between temperature and crime (especially violent crime) among climate or weather factors, but there seems to be no academic consensus on the strength of the relationship between climate/weather and crime. Based on the review of these theories and empirical studies, some academic and policy implications were suggested.

KCI등재

4준강간죄의 불능미수에 대한 고찰

저자 : 이창섭 ( Lee Chang-sup )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 4호 발행 연도 : 2020 페이지 : pp. 99-127 (29 pages)

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Article 299 of the Criminal Act defines “A person who has committed adultery with another by taking advantage of his/her condition of mental defection or inability to resist” as a subject of the crime of quasi-rape. In 「Supreme Court en banc Decision 2018Do16002 Decided March 28, 2019」, Majority Opinion considered the object of act in the crime of quasi-rape as 'another in a condition of mental defection or inability to resist' and acknowledged that in the case that the defendant, mistaking the victim being not in a condition of mental defection or inability to resist for him/her being in such condition, committed adultery with him/her, the impossible attempt of the crime of quasi-rape is established. Dissenting Opinion considered the object of act in the crime of quasi-rape as 'another' and denied the establishment of the impossible attempt of the crime of quasi-rape in that case.
However, when a certain qualification or nature of the object of act is provided on the legal elements of the crime, as in the crime of killing ascendant, a object with such a qualification or nature shall be regarded as the object of act. Since the nature of 'another' is expressed as 'a condition of mental defection or inability to resist' on the legal elements of the crime of quasi-rape, the object of act in the crime of quasi-rape is to be interpreted as 'another in a condition of mental defection or inability to resist'. Impossible attempt of the crime of quasi-rape under Article 27 of the Criminal Act can be established, if the requirements of 'impossibility of result' caused by the mistake of means or objects in the committing a crime and 'danger' are met. The former means the impossibility of results of the legal elements of the crime judged by ex post and factual standpoint, and the latter means the hypothetical and potential danger judged by ex ante and normative standpoint. Whether there is 'danger' or not shall be judged by the abstract danger theory. The defendant had a mistake of object and means in the committing the crime of quasi-rape, and the defendant's acts cannot produce the results of the crime. But 'danger' can be acknowledged according to the abstract danger theory.
In the end, Majority Opinion many opinions is a valid opinion.

KCI등재

5양벌규정 적용에 있어 의무규정의 수범자와 실제 의무위반자의 불일치 - 개정 산업안전보건법상 양벌규정을 중심으로 -

저자 : 차종진 ( Cha Jong-jin )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 4호 발행 연도 : 2020 페이지 : pp. 129-152 (24 pages)

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Die Bedeutung von juristischer Person, insbesondere von Unternehmen, als Wirtschaftsakteure in der modernen Gesellschaft muss nicht mehr betont werden. Nach der herkömmlichen Meinung ist es ublich, die strafrechliche Handlungsfähigkeit und Schuldfähigkeit einer juristischen Person zu leugnen, weil sie nur durch ihre Organe handeln kann, und sie frei, verantwortlich, moralisch nicht selbst bestimmen kann. Aber heute zu Tage sind wissenschaftliche und praktische Versuche, eine unabhängige strafrechtliche Verantwortlichkeit von der juristischen Person anzuerkennen, aktiv im Gange. Auf der anderen Seite wird im Bereich des verschiedenen Verwaltungsrechts die strafrechtliche Verantwortlichkeit von der juristischen Person durch die speziellen Strafvorschriften auferlegt. Aber dabei kann man gelegentlich eine bedenkliche Normanwendung erblicken. Diesbezuglich handelt es sich um eine Inkonsistenz zwischen dem Normadressanten und tatsächlichen Täter. Bei dieser Gelegenheit wird die wiederspruchliche Normanwendung durch die speziellen Strafvorschriften im Bereich des Verwlatungsrechts erörtert.

KCI등재

6디지털 증거의 선별적 압수수색에 관한 LSH(Locality Sensitive Hashing)기법 활용방안 연구

저자 : 유상현 ( Yoo Sang Hyun ) , 이경렬 ( Lee Kyung-lyul )

발행기관 : 한국형사정책학회 간행물 : 형사정책 31권 4호 발행 연도 : 2020 페이지 : pp. 153-182 (30 pages)

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Currently, the selective search and seizure on electronic information allow the selective search and seizure in principle as far as electronic information in information storage devices is related to some incidents, but technically limitations exist.
In order to find out the relevance of the case, the method used by investigative agencies is to search based on keyword within electronic information. The method of keyword search mainly progresses in the way of “Boolean search”, which has a characteristic that abstracts the result at the time of perfect match to the keyword combination. Recently, to avoid such methods of search and seizure by investigative agencies, we can see some cases that investigators attempt various methods of avoiding investigation, such as changing keyword related to the facts of suspicion and designating unrelated file names. Also, due to technological advances, the capacity of information storage devices and the number of electronic information are becoming larger and larger than ever before, and the rate of increase is rising exponentially. The method of Electronic development of various technologies, since the capacity of the information storage devices to be explored for electronic information is expected to become larger in the future.
In this paper, I propose a method of selective search and seizure of digital evidence using a kind of text mining, Locality Sensitive Hashing. The method I would suggest is to calculate additional words and sentences throughout the document from the existing keyword search method and quickly compare and list the similarities of documents in the data storage devices. This method confirmed the four improvements. First, it is possible to detect electronic information related to the suspected facts that could not be verified by the existing methods. Second, adding the existing selective search and seizure method will speed up the overall search for information storage devices. Third, it brings diversity in methods of selective search and seizure for electronic information. Finally, document similarity is better at protecting the privacy of the oppressed than keyword search.
I believe that if I introduce a variety of text mining techniques into electronic information search and seizure methods, starting with document similarity, I can gradually develop into a screening confiscation method that will give us a variety of possibilities to discover the actual truth.

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currency cannot escape from the exchange method based on the centralized management system, and all the anonymous participants share the ownership and transaction information of money in the form of block chain. The block chain is mainly known as the underlying technology of bit coin, but it is attracting attention as one of the innovative new technologies having much usefulness in various fields.
The problem is that various crimes are occurring using the anonymity and transnational nature of crypto currency. Thus, various crimes that exploit the positive aspects of crypto currency have been increasing, and it is expected that crime related to crypto currency will continue to increase due to the high interest in various crypto currency including bit coin in the world.
Although it is important to formulate legislation on crypto currency crime, it is necessary to examine whether there is an inseparable relationship between the recent debate on the development of crypto currency techniques and block chain technology. If the block chain technology is useful technology and development in the 4th industrial revolution era, if the crypto currency is an indispensable factor for the development of the block chain technology, it is necessary to recognize the existence of the cryptographic currency. But if not, regulation on crypto currency needs to be more aggressive. When regulating crypto currency, it is necessary to first identify its legal nature. This is because the right criminal policy measures can be suggested. Anyway, during the 4th Industrial Revolution era, the use of digital devices will increase more and the importance of digital evidence will increase accordingly. The use of block chain technology to secure or strengthen the integrity of digital evidence should also be discussed in terms of criminal policy.

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(2006)홍길동 외 1명심리학41회 피인용

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