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한양대학교 법학연구소> 법학논총> 공법 : 사형제도의 합리적 대안에 관한 연구

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공법 : 사형제도의 합리적 대안에 관한 연구

A Study on the Reasonable Alternative of Death Penalty

박찬걸 ( Chan Keol Park )
  • : 한양대학교 법학연구소
  • : 법학논총 29권1호
  • : 연속간행물
  • : 2012년 03월
  • : 5-27(23pages)
피인용수 : 27건

(자료제공: 네이버학술정보)

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There had been attempts to abolish the death penalty until the 17th National Assembly. On the other hand, the three Special Laws on Death Penalty Abolishment submitted to the 18th National Assembly are different from previous ones because the core of argument is not whether to keep the death penalty system or not. The key arguments of the new 3 laws are the concept and the scope of life sentence, which will replace the death penalty if the death penalty would be abolished. It is judged that this is a desirable development reflecting the current situation because the death penalty has already become dead words. It is expected that there will be more vigorous and practical discussion on the alternatives of death penalty in the future; instead of the theoretical discussion on whether to keep the death penalty or not. In order to respond to recent trend, this study advances one more step from the existing examination on the validity of concrete basis claimed by the party who support the keeping of death penalty system and the party who support the abolishment of death penalty system. This study further tries to find the answer to the question asking what would be the most reasonable alternative to death penalty, if the death penalty system would be abolished. For this, the policy directions during the transition period of death penalty alternative; such as the decrease of crimes which would be sentenced of death penalty, the effect realization equivalent to the death penalty sentence suspension and the introduction of ``absolute life sentence`` will be discussed and the issues will be drawn. As last, the discussion will close by suggesting the content of relative life sentence and the rational operation plan for the related requirement as the ultimate policy direction of the alternatives to the death penalty system.

ECN


UCI

I410-ECN-0102-2012-360-003227138

간행물정보

  • : 사회과학분야  > 법학
  • : KCI 등재
  • : -
  • : 계간
  • : 1225-228x
  • :
  • : 학술지
  • : 연속간행물
  • : 1984-2018
  • : 1152


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1공법 : 사형제도의 합리적 대안에 관한 연구

저자 : 박찬걸 ( Chan Keol Park )

발행기관 : 한양대학교 법학연구소 간행물 : 법학논총 29권 1호 발행 연도 : 2012 페이지 : pp. 5-27 (23 pages)

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There had been attempts to abolish the death penalty until the 17th National Assembly. On the other hand, the three Special Laws on Death Penalty Abolishment submitted to the 18th National Assembly are different from previous ones because the core of argument is not whether to keep the death penalty system or not. The key arguments of the new 3 laws are the concept and the scope of life sentence, which will replace the death penalty if the death penalty would be abolished. It is judged that this is a desirable development reflecting the current situation because the death penalty has already become dead words. It is expected that there will be more vigorous and practical discussion on the alternatives of death penalty in the future; instead of the theoretical discussion on whether to keep the death penalty or not. In order to respond to recent trend, this study advances one more step from the existing examination on the validity of concrete basis claimed by the party who support the keeping of death penalty system and the party who support the abolishment of death penalty system. This study further tries to find the answer to the question asking what would be the most reasonable alternative to death penalty, if the death penalty system would be abolished. For this, the policy directions during the transition period of death penalty alternative; such as the decrease of crimes which would be sentenced of death penalty, the effect realization equivalent to the death penalty sentence suspension and the introduction of ``absolute life sentence`` will be discussed and the issues will be drawn. As last, the discussion will close by suggesting the content of relative life sentence and the rational operation plan for the related requirement as the ultimate policy direction of the alternatives to the death penalty system.

2공법 : 형사소송법상 조사자증언제도의 도입과 경찰 수사절차의 변화방향

저자 : 김종길 ( Jong Kil Kim )

발행기관 : 한양대학교 법학연구소 간행물 : 법학논총 29권 1호 발행 연도 : 2012 페이지 : pp. 29-53 (25 pages)

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The amended criminal procedure law in the 2007 has introduced the examiner testament system. Civil Participation in Criminal Trial is where citizens are allowed to participate in criminal rulings to foster democratic appropriateness, concentrate hearing trial and direct evidence principle. An investigator`s testimony consists of a defendant`s testimony given at a time close to the incident that gave rise to the case, either at the site of the crime scene or during investigation procedure. Therefore, if the defendant denies the investigator`s testimony, the police officer`s testimony could have more influence on the jury than anywhere else. For a successful implementation of investigator testimony system, first, consistency, attitude specifity, clear distinction between admissibility of evidence and relevance of evidence is necessary in trials to fulfill the special trust condition for admissibility of an investigator`s testimony as evidence. Also, a flexible attitude is required when regarding responsibility for standing proof when judging "condition of particular trust." Second, when writing interrogation records of the defendant, changes in investigative procedures for safeguarding legality and objectivity and securing physical evidence are needed, along with a change of role in the principle agent in investigation. For this purpose, the police is the principle agent in evidence collection, and the prosecution is the principle agent in the right of arraignment. The two agents should stay true to their duties and maintain a cooperative relationship. Third, several legal issues related to investigator testimony are examined.

3Insight to Cybercrime

저자 : Nadia Khadam

발행기관 : 한양대학교 법학연구소 간행물 : 법학논총 29권 1호 발행 연도 : 2012 페이지 : pp. 55-80 (26 pages)

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Crime is an ever-developing phenomenon. With the passage of time criminals have adopted various mediums to support their illicit aims. The advent of computer technology provided many opportunities for business and communication and also many opportunities for the traditional crimes to be carried out digitally. These crimes are often termed as cybercrimes. However, Cybercrime as of yet has no clear definition or description. Many people have drafted definitions of cybercrime gradually with the development of technology, but there is no definition which is globally accepted. This article is organized to combine the most relevant information about cybercrimes in one body of work and to help those, new to this area of study. To achieve this purpose, major definitions of cybercrime from different sources have been gathered and attempted to characterize cybercrime in the light of these definitions, depending on its nature. This work examines the history, origin and development of cybercrime. This is followed by the analysis of legislative growth in this sphere, and how cybercrime is becoming a challenge for legislative bodies around the world. This work also contains a brief account of commonly done cybercrimes with examples. Finally, this work will examine the impact of cybercrime on the world at large considering economic, social and cultural aspects of the society.

4사법 : 미국의 트위터 스토킹 사건 판례 연구 -미국법상 표현의 자유를 중심으로-

저자 : 박완규 ( Wan Q Pak )

발행기관 : 한양대학교 법학연구소 간행물 : 법학논총 29권 1호 발행 연도 : 2012 페이지 : pp. 81-100 (20 pages)

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The FBI indicted the defendant for violation of the statute that prohibits any person from causing emotional distress with the intent to cause emotional distress. The court found that the defendant`s stalking through his twitters and blogs is the speech that the First Amendment has consistently protected. However, there are some narrow exceptions to this broad protection of speech. In order to prohibit these types of speech, the government must show that it has compelling interest to prevent the stalking. Here, the court found that there is no compelling interest on the part of the government. The government argued that the statute in question regulates conduct not speech. The court stated that when combined conduct and speech constitutes a course of conduct the intermediate scrutiny applies. The court found that even if there is reasonable ground for the government, the statute does not survive the intermediate scrutiny. Therefore, the speech is protected and the statute to prohibit the speech does not survive the test, and thus the motion to dismiss the indictment by the defendant is granted. This case confirms that protection of expressions on new IT media is not different from that of the traditional means such as bulletin boards or papers when it comes to the freedom of speech. In this case, the defendant`s conduct seems morally wrong. He lied to A.Z. and TPC. He betrayed the trust that A.Z. and TPC has given. It is noted that the defendant`s morality has nothing to do with his freedom of expression. This case is very rare one dealing with the freedom of expression through twitters. This paper aims at introducing what the court has held and its reasoning to the readers to help understanding the case and find implications from it.

5사법 : 인체에 대한 권리관계의 새로운 패러다임

저자 : 최수정 ( Su Jeong Choi )

발행기관 : 한양대학교 법학연구소 간행물 : 법학논총 29권 1호 발행 연도 : 2012 페이지 : pp. 101-130 (30 pages)

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Das Recht am eigenen Korper ist als ein Personlichkeitsrecht aufzufassen. Sogleich mit der Abtrennung des Korperteils vom lebenden Menschen entsteht eine Sache, erwirbt der bisherige Trager originares Eigentum an den abgetrennten Korperteil. An ihn dauert das Personlichkeitsrecht aber fort. Deshalb hat das ihrere Spannungsverhaltnis sorgfaltig erwogen zu werden. Rechtswissenschaftliche Untersuchungen uber die menschlichen Korperteile blieben bisherig auf der Wesen des Rechts stehen. Kaum die Gedanke wurde dagegen der Zulassigkeit, Verwendung oder Beteiligung gewidmet. Also versucht dies Aufsatz das Rechtsverhaltnis der Vertragsparteien aufzuklaren und richtige Losungen vorzuschlagen. Die Entnahme der Substanz aus dem Korper des Patienten darf nur mit Einwilligung des Patienten erfolgen und dieser Einwilligung eine Aufklarung des Arztes vorangehen muß. Aus den beiden Rechtsgrunden, Personlichkeitsrecht und Arztvertrag, ergebensich gewichtige Einschrankungen der Befugnisse des Arztes zur Nutzung erlangter Korpersubstanzen. Hat ein Patient sich aber beim Zurucklassen seiner Substanzen nicht um sie gekummert und wurden die Zellen anschließend ohne seine Kenntnis und ohne die im Einzelfall an sich erforderliche Zustimmung verwendet, dann wird er dadurch kaum einmal nachtraglich zu großem finanziellem Reichtum gelangen.

6사법 : 가족법상 부양의무와 사회보장법상 부양의무 준별론

저자 : 정민호 ( Min Ho Jeong )

발행기관 : 한양대학교 법학연구소 간행물 : 법학논총 29권 1호 발행 연도 : 2012 페이지 : pp. 131-147 (17 pages)

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I meditate the social evaluation on the duty of supporting family in the social security act. This paper examined legal characteristics of family support obligation in Family Law and the National Basic Livelihood Security Law. This study reviewed legal revisions and changes of family support obligation in Civil Law and Livelihood Protection Law to NBLSL. Who care for the poverty? Family Responsibility vs. Social Responsibility exists. The basic assumption of this study is that there are distinct differences between the duty of supporting on the Social Security Act and the duty of supporting on Family Law. The private support has been adopted regarding to the public aid. The duty of supporting was considered as the standard of the social evaluation and mediation of public support in social security law. We regard it as a important criterion of judgement. The duty of supporting used sevral times on the social security act. But the definition of duty of supporting is not found on the social security act. It is necessary that clear lawfulness of the duty of supporting is confirmed. Although the duty of supporting in sevral laws are many differences, some theory is treated same meaning. It should be corrected. On the one hand, many poor people in Korea still live in poverty without governmental supports in spite of the the National Basic Livelihood Security System. These problems were cuased by family support obligation rule.

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