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한국형사정책학회> 형사정책> 연구논문 : 동북아시아 사형제도의 국제 동향과 미래 예측

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연구논문 : 동북아시아 사형제도의 국제 동향과 미래 예측

ARTICLE : A International Trends and Forecasting of the Death Penalty in Northeast Asia

이덕인 ( Deok In Lee )
  • : 한국형사정책학회
  • : 형사정책 24권3호
  • : 연속간행물
  • : 2012년 12월
  • : 273-297(25pages)

DOI


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초록 보기

As entering modern and contemporary times, northeast countries chose ways different from one another in the process that they established their own national identities and organized ideologies bolstering the identities. However, their epistemological bases of crimes and punishments were as ever connected by asian values. Therefore, the solidarity of asian values on death penalty may boil down eventually to the problem of how to dissolve the set of fixed values. Although this awareness accompanies as many difficulties in leading changes as the depth of history, it is inevitable to cope with the problem by building solidarity power on the basis of co-prosperity of mankind because death penalty ultimately are not a problem of a regional situation applying to a certain country. Specifically, Korea has halted an execution of death penalty for a long time, and furthermore, in order to be commensurate with its expected role in the global society as the country from which UN secretary general is from and as a newly elected non-permanent member of the security council, it should boost its status as a country completely abolishing the death penalty in northeast asia by hurriedly signing the 2nd optional protocol to the international covenant and taking a procedure to ratify it.

ECN

ECN-0102-2014-300-001673872


UCI

I410-ECN-0102-2014-300-001673872

간행물정보

  • : 사회과학분야  > 법학
  • : KCI 등재
  • : -
  • : 연3회
  • : 1226-2595
  • :
  • : 학술지
  • : 연속간행물
  • : 1986-2018
  • : 634


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발행기관 최신논문
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1특집 : 국민참여재판의 새로운 쟁점 ; 국민참여재판에서 배심원 평결의 기속적 효력에 관한 검토

저자 : 한상훈 ( Sang Hoon Han )

발행기관 : 한국형사정책학회 간행물 : 형사정책 24권 3호 발행 연도 : 2012 페이지 : pp. 9-38 (30 pages)

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Launched in 2008, citizens` participation in the serious criminal trials havebeen going well for five years in Korea. Number of applications for citizen participation reached 1,490 from January 1, 2008 to December 31, 2011, and 574 cases of which have been eventuallly tried with jury(38.5%), in the rest of cases defendants withdrew the applications or the court decided it was inappropriate for jury trial. In the beginning there were concerns about the successful administration of jury trial in Korea, however, the current situation is quite stable and settled. In July, 2012, the Supreme Court Judicial Participation Commission w as i nstituted to d iscuss and d ecide af inal f orm of civil participation in criminal trials. Now is such a critical moment that this paper tries to review and discuss one of the most important issues - jury`s verdict should have a binding force on judge in guilty or not guilty question. Until now, the jury verdict has a recommendation effect. The Office of Court Administration reported that jury verdicts and the judge decisions have been the same in result in more than 90 percent of tried cases, which demonstrates the credibility of jury`s judgment. Moreover, 81 percent of the 2,595 jurors surveyed from January 2010 to June 2012 across the nation responded in favor of the binding force, some for hard binding force, the others for soft one. In addition, the Korean Constitutional Court decided that the right to trial by judge (Art. 27 (1)) was not violated when a petitioner had at least one opportunity to be reviewed on fact and law by judge throughout the trial to the appeal. The paper maintains that a “soft binding force” of jury verdict on judge would be proper and desirable for the second stage of civil participation in Korea, giving judge the power to veto where, for instance, there are some exceptional grounds to believe that the jury verdict is unreasonable or in violation of the constitution or the law. We should go one more step forward in harmony with the representative democracy, separation of powers, and the right to trial by judge.

2특집 : 국민참여재판의 새로운 쟁점 ; 국민참여재판과 항소

저자 : 임보미 ( Bo Mi Lim )

발행기관 : 한국형사정책학회 간행물 : 형사정책 24권 3호 발행 연도 : 2012 페이지 : pp. 39-65 (27 pages)

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Examination of the current status of the Civil Participatory Trial reveals higher appeal rate than regular trials. In particular, the appeal rate by prosecutors is considerably high while the annulment rate at appellate reviews is low. The grounds for appeal set forth in the Criminal Procedure Code, Article 361-5 has remained untouched since the Code`s 2nd revision in 1963, and they need to be re-interpreted to take account of the cases tried through Civil Participatory Trials. Also, in the current context where the prosecutor`s appeal against not-guilty judgements is taken for granted, the Civil Participatory Trials may function as the starting point for prohibiting appeals against not-guilty judgements. Regular trials and Civil Participatory Trials are different from each other in terms of the ideas behind each system and the principle of trial-oriented evidence law. In addition, the appellate reviews of the two systems need to be managed in different ways, as the latter employs a unique procedure in which the defendant and prosecutor determine the fact-finders of his/her own case. The interest in and importance of appellate reviews have recently increased with the adoption of participatory trial system and changes in public trial in the courts of 1st instance. Active and constant discussions are required in order to ensure the appellate trial system to play its essential role of defendant protection while preserving the original intent behind the adoption of the Civil Participatory Trial system.

3특집 : 형사절차에서의 협상과 합의 ; 형사절차상 협상제도 도입에 관한 고찰

저자 : 박정훈 ( Jung Hun Park )

발행기관 : 한국형사정책학회 간행물 : 형사정책 24권 3호 발행 연도 : 2012 페이지 : pp. 69-97 (29 pages)

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(기관인증 필요)

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Criminal procedure h as i ts prime o bjective in f inding o ut o f the substantive truth. With the notion that the ultimate goal of criminal procedure is to realize justice through the regulation of penalty that corresponds the responsibility, the criminal must get punishments equivalent to his/her responsibility by finding out the substantive truth. "Agreement", a word that has an image of making a deal or compromise, seems to be an inappropriate concept in the criminal procedure. In today`s world, despite slight differences in contents, not only the Anglo-American legal system including the United States which is based on Offizialprinzip litigation system but also the continental legal system which takes a Parteienprinzip litigation structure implement the agreement system in their criminal procedure. Moreover, agreement has already become a universal phenomenon in criminal procedure of the 21st century and it is spreading worldwide. Demand for "agreement" is increasing in Republic of Korea as well. Nevertheless, even if the "agreement" system is necessary, it should not be implemented if it does not follow the judicial principle. Here lies the reason w hy e xamining t he l egitimacy of the agreement system is necessary. Examination on legitimacy of agreement system revealed agreement system as a whole is not unfair but its legitimacy depends on how the content is composed of. Above all, agreement system should be realized within the criminal law of Rechtasstaat. For this, mediators of the negotiation should be the judges. This guarantees the rights of defendant · plaintiff in the criminal procedure while getting rid of any concern about concentration of power to prosecutors when leading roles of the negotiation are given to prosecutors. Especially, the principle of innocent until proven guilty and the right to be tried in court by judges which are specified in Constitutional law should be guaranteed. The agreement system, however, must be applied only to minor offenses (For instance, crimes punished by under one year of prison time). Further more, in cases such as organized crime, drug crime, white-collar crime and corruptions of public servants, which by nature are difficult to investigate without information from insidesources, crimes eligible for agreement should be decided according to the charges. Moreover, in order to ensure defendants` rights, Compulsory lawyer policy should be introduced. Defendants should also be given the opportunity to withdraw negotiations and hold official trials before they are sentenced. The court should nullify the binding force of negotiations when new facts are discovered or there are changes in the preconditions for negotiations. It is a prerequisite to establish guidelines for punishments which are criteria of negotiations.

4특집 : 형사절차에서의 협상과 합의 ; 소년법상 화해권고제도 규정의 문제점과 개선방안

저자 : 강지명 ( Jee Myoung Kang )

발행기관 : 한국형사정책학회 간행물 : 형사정책 24권 3호 발행 연도 : 2012 페이지 : pp. 99-130 (32 pages)

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In order to deduce the restorative justice that has to be introduced to the juvenile justice, this study compared existing retributive criminal justice together with the juvenile justice and restorative justice that are rehabilitative criminal justices first. If the retributive criminal justice can be said as focusing on crimes, rehabilitative juvenile justice centers on the offender. So, the boy shows angers on the punishment that is responses on criminal justice`s crimes, and displays responses as a dependent human on rehabilitative treatments of the juvenile justice. In contrast, the restorative justice aims at restoring damages while focusing on personal relationships centering on victims. Thus, the boy shows responses called acquisition of responsibility in the restorative justice. As the restorative justice has contexts of democracy while the juvenile justice keeps social contexts like welfarism, and thus it rather charges responsibilities to the boy. Key principles of the restorative justice in juvenile laws could be said as ``restorations of damages, responsibility`s acquisition of the offender, participations and supports of the community.`` Restorative justice programs have to be managed based on spontaneity of offender and victims, and also restorative sanctions of existing juvenile judiciary proceedings have to be applied in case both parties do not reject submission to the program or mutual consents are not made. And introduction of the restorative justice that lays the center of gravity to the offender, victim, and community proportionally is suitable. The study analyzed restorative justice programs such as victim-offender mediation, reparative boards, sentencing circle on weighing of offenses, family group conference. Among them, the conference system was corresponded to a fully restorative model that can realize the restorative juvenile justice to the maximum. In operating processes of the restorative justice program, the restorative justicebecome realized through a lot of stages. Even though mutual agreement is made by conferencing outcomes, the restorative justice is not actualized at once. The restorative justice becomes realized only when arranging immediate outcomes that can be displayed just after conferencing and intermediate results having been appeared after the outcomes, and then existing of connected processes such like immediate outcomes to intermediate ones, and intermediate outcomes to the restorative justice in the long term. Various institution`s improvements and supplements are required so that the restorative justice can be settled down in the juvenile justice. Also, the restorative justice supposes applications to actuality naturally because it is extracted from practices, not utopian ideals. Therefore, its realization is depended on the operator thoroughly. The juvenile justice shall take interests in controlling, managing, and assisting the restorative justice programs so as to become fit to its jurisprudence.

5특집 : 형사절차에서의 협상과 합의 ; 형사소송절차상 관행으로서 형사합의에 관한 실증적 연구

저자 : 장다혜 ( Da Hye Chang )

발행기관 : 한국형사정책학회 간행물 : 형사정책 24권 3호 발행 연도 : 2012 페이지 : pp. 131-160 (30 pages)

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Though not officially institutionalized as a part of the criminal procedure, ``criminal settlements`` currently practiced in Korea have actual legal significance. This study investigates how this unofficial practice of ``criminal settlement`` is being practiced in the criminal justice system. For this purpose, qualitative analyses were performed on empirical data collected from various sources including interviews with legal practitioners and other literatures of non-academic nature. The findings of this study are summarized below. Criminal settlements have certain legal effects within the criminal procedure because: 1) they represent a dispute resolution method based on reconciliation agreement between the assailant and the victim aimed at restoration for the victim, and 2) such unofficial dispute resolution is considered during official criminal procedure by means of the ``subsidiarity principle`` under Korean criminal law. During a criminal litigation, criminal settlements are considered through two concepts under the criminal law: victim`s unwillingness to punish the defendant, and the defendant`s efforts for restoration. The unofficial legal practice employs a systemized procedure for confirming and considering such concepts. Criminal settlement, considered as a dispute resolution method through restoration, comes to constitute a legal custom within modern criminal procedure in the following way. As the civil procedure is separated from the criminal procedure, the judicial bodies do not officially intervene in the processes and details of settlements between private entities, only focusing on the victim`s unwillingness to punish as a ground for its adjudication. This results in the processes and details of the settlements being left in the private sphere. In addition, as the system of criminal law is based on adversary system which focuses on punishing the assailant, criminal settlements are considered only as an evidence of the defendant`s efforts for restoration. This reflects only the defendant`s point of view, while no institutional remedy is available for confirming and evaluating the actual ef frto f ro r estoration i n the victim`s p oint o f view. U nder t hese circumstances, criminal settlements are re-interpreted as a part of the defendant`s right to defend, not as a way to restitute for the injuries suffered by the victim.

6연구논문 : 인터넷 악성댓글에 있어 낮은 자기통제력과 인터넷사이트 환경요인의 조건적 작용과 그 남녀 차이

저자 : 이성식 ( Seong Sik Lee )

발행기관 : 한국형사정책학회 간행물 : 형사정책 24권 3호 발행 연도 : 2012 페이지 : pp. 163-185 (23 pages)

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This s tudy t ests t he e f f ect of low self -control o n internet b ullying behavior and also analyzes the conditioning effect of low self-control by internet environmental factors including both collective efficacy (trust/cohesion and informal control) and internet subculture. This study tests a gender difference in interaction effect between low self-control and both environmental variables on internet bullying behavior. Using data from surveying 576 middle school students in Seoul, 2007, results show that there are gender differences. It is revealed that the effect of low self control is stronger on female than on male and also results show that the effect of internet subculture is stronger on female than on male, while the effect of informal control is stronger on male than on female. It is found that the interaction effect between low self-control and internet subculture is significant only on female, while interaction effects between low self-control and collective efficacy variables are not significant on both male and female.

7연구논문 : 내부고발자 보호제도에 관한 연구

저자 : 권창국 ( Chang Koo Kwon )

발행기관 : 한국형사정책학회 간행물 : 형사정책 24권 3호 발행 연도 : 2012 페이지 : pp. 187-216 (30 pages)

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In 2001, The Korean Whistleblower Protection Act that is called anti-corruption law was enacted, first time and then in 2011, by enaction of protection of accuser for public interest law, Whistleblower (inner accuser) Protection System was established completely in Korea. so, during about 10 years, Although Whistleblower Protection System has been taken root in Korea, it is not enough to protect whistleblowers actually, seeing many cases of whistleblowing, for example, corruption of naval military supply case in 2009, slush fund of Samsung case in 2007, etc. the Whistleblower Protection System is understood the best method to prevention corruption and other crime or illegal activity in organization like as government, corporation and so on, by ordinary watching system that is offered by inner structure itself. but this system has negative side effect like as, weakening of solidarity in organization and members, shock about economic aspect by disclosure of trade secret, etc., falling of social trust or reputation about organization. so, some kinds of precondition are need in successful management of Whistleblower Protection System, so to speak, public condition.; first, there must be significant social harm in relation to whistleblowing case, second, priority of inner disclosure method, third, possibility o f proving t he case by s ound a nd o bjective evidence, forth, reasonable belief of whistleblower about case, fifth, the moral need to disclosure of case. in this study, consulting to above justifying condition of whistleblowing and comparing with the Whistleblower Protection System of other country, problems in Korean Whistleblower Protection System and alternatives will be examined.

8연구논문 : 범죄피해자 진술청취시 공감적 조사기법의 활용에 관한 연구

저자 : 이봉한 ( Bong Han Lee ) , 김윤주 ( Yun Joo Kim )

발행기관 : 한국형사정책학회 간행물 : 형사정책 24권 3호 발행 연도 : 2012 페이지 : pp. 217-239 (23 pages)

다운로드

(기관인증 필요)

초록보기

Although the psychological therapy is different from victim interview by investigation officer, they both have something in common with each other such as the power, nonverbal behavior and empathy training etc., which can be adopted and shared. When it comes to interviewing victims in criminal cases, investigative agency tends to focus on substantial truth discovery to bring the suspect to the justice. But one of therole of the victim interviewer must be to help shield victims from the inconvenient realities, counsel and make them aware of their rights and what lay ahead. That is the way how it can do the most good by interviewing victim empathically as an integral part of an investigation. Here is suggested a scale for valuation of the empathic attitudes (15 items) by means of surveying 104 police investigative officers from 4 police stations in Seoul, Daejeon (2) and Asan, along with lecturing half of them the empathic techniques and with individual interviewing some of them, which should be verified in further study afterwards. While there is no doubt that interviewing officers should have the capacity to empathize with victims by education and special training, this study might be criticized in perspective of its limitations which is lacking considering of pressures of heavy work.

9연구논문 : 피해자 권리의 실효성 확보에 관한 소고

저자 : 김재민 ( Jae Min Kim )

발행기관 : 한국형사정책학회 간행물 : 형사정책 24권 3호 발행 연도 : 2012 페이지 : pp. 241-271 (31 pages)

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Korean legal system might be said that it has established the minimum legal basis for protecting the crime victims`rights through legislating or amending the constitution, criminal procedure law and other special codes until now. However, even though the legal system seems to be built successfully at a glance, it does not result automatically in securing the victims`real rights. On a surface, they pretend to be the victims`rights but actually they belong to ``illusionary rights``. There are many cases which the victims` rights have functioned as the illusionary rights on the federal laws and state constitution in America. Similarly, if being analyzed the characteristic of various victims` rights in Korea, some have been proved to be real such as the right of securing personal safety, on the other hand, however, some illusionary such as the right to timely notice of any public proceeding, not to be excluded from any such public proceeding, and to full restitution as provided in law. To become real, crime victims` rights must be accompanied by victim standing through solving discretion problem, meaningful remedy, and review as a matter of right. In the case of Korea, the scope of victims` participation into criminal proceeding should be enlarged much more so that victims could address their own interest at every step of the criminal procedure. Secondly, the courts should try to make a judicial review positively with a deep understanding to victims` suffering. Thirdly, the legislators should use the mandatory language as much as they can. I f they cannot help using the discretionary language, the more detailed instructions should be offered on the sub-code level or the independent regulative agency should be established for controlling the abuse of discretion of criminal authorities.

10연구논문 : 동북아시아 사형제도의 국제 동향과 미래 예측

저자 : 이덕인 ( Deok In Lee )

발행기관 : 한국형사정책학회 간행물 : 형사정책 24권 3호 발행 연도 : 2012 페이지 : pp. 273-297 (25 pages)

다운로드

(기관인증 필요)

초록보기

As entering modern and contemporary times, northeast countries chose ways different from one another in the process that they established their own national identities and organized ideologies bolstering the identities. However, their epistemological bases of crimes and punishments were as ever connected by asian values. Therefore, the solidarity of asian values on death penalty may boil down eventually to the problem of how to dissolve the set of fixed values. Although this awareness accompanies as many difficulties in leading changes as the depth of history, it is inevitable to cope with the problem by building solidarity power on the basis of co-prosperity of mankind because death penalty ultimately are not a problem of a regional situation applying to a certain country. Specifically, Korea has halted an execution of death penalty for a long time, and furthermore, in order to be commensurate with its expected role in the global society as the country from which UN secretary general is from and as a newly elected non-permanent member of the security council, it should boost its status as a country completely abolishing the death penalty in northeast asia by hurriedly signing the 2nd optional protocol to the international covenant and taking a procedure to ratify it.

12
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