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한국비교형사법학회> 비교형사법연구> 마약류 범죄에 대한 형사법적 대응에 관한 일고찰

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마약류 범죄에 대한 형사법적 대응에 관한 일고찰

Criminal Law Responses to Narcotic Drug Crimes in Korea

이인영 ( In Young Lee )
  • : 한국비교형사법학회
  • : 비교형사법연구 16권2호
  • : 연속간행물
  • : 2014년 12월
  • : 171-196(26pages)

DOI


목차

Ⅰ. 서론
Ⅱ. 마약류 범죄의 개념과 특성
Ⅲ. 마약류범죄의 현황
Ⅳ. 마약류범죄에 대한 형사법적 대응체계
Ⅴ. 결론

키워드 보기


초록 보기

 
It is very important to devise preventive actions to prevent narcotic drug crimes. The punishment system taking a heavy penalty system on narcotic drug crimes may achieve an effect at the general preventive level. However, there are some limitations. In addition to criminal law responses to narcotic drug crimes, the preventive actions should be established from the social and cultural aspect. Also, measures for the treatment, and rehabilitation of drug addicts in correctional facilities should be established, and an efficient management policy for drug addicts, who return to society, is necessary. Actually, the effectiveness needs to be ensured. The punishment system on the narcotic drug crimes maintains the basis of severe punishment policy on the use activity, as well as on distribution activity with a differential punishment system by activity type. However, more debate is needed on whether the heavy punishment system on simple use activity of soft narcotic drugs with relatively low addictiveness, risk, or risk possibility, is a proper criminal policy alternative. Under the current system, a punishment on simple use seems to be shifted to treatment-focused policy, rather than punishment. The disposition of treatment system needs to be operated, centered on treatment subjects to the extent that the treatment protection or correction treatment on narcotic drugs offenses can get actual effectiveness, rather than just formality. Namely, the disposition of treatment should be carried out for enough time to induce behavioral change. Also, a procedure to request narcotic drugs offenses to a treatment center from the investigation and prosecution stages seems to be necessary, before proceeding to the procedure in public trial. Meanwhile, the investigation of narcotic drug crimes having the characteristics of organizational crime need an action of special investigation techniques, such as controlled delivery, electronic monitoring, and undercover operation, and the specific enactment of legally applicable provisions is required. UN Agreement and others recommend the establishment of funds securing finances with confiscated illegal property to prevent narcotic drug crimes, and organizational crimes, and also to support crackdown. In consideration of such a recommendation, Korea can consider the adoption of a confiscated assets fund system for the purpose of effective crime control for deprivation of benefits from crimes, and policy enforcement from the preventive dimension including the promotion of law enforcement agency``s active work performance and treatment of addicts.

UCI(KEPA)

I410-ECN-0102-2015-300-002148883

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  • : 사회과학분야  > 법학
  • : KCI등재
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  • : 계간
  • : 1598-091x
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  • : 학술지
  • : 연속간행물
  • : 1999-2019
  • : 1044


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1검사의 독점적 영장청구권과 통신사실 확인자료 요청허가청구권

저자 : 김재윤 ( Jae Yoon Kim )

발행기관 : 한국비교형사법학회 간행물 : 비교형사법연구 16권 2호 발행 연도 : 2014 페이지 : pp. 1-23 (23 pages)

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The Korean Constitution has explicit provision (Article 12 section 3, Article 16 clause 2) that prosecutor is the only subject of request for a warrant in case of arrest, detention, seizure, or search in order to protect the freedom and human right of a suspect. By the way, the nature of the doctrine of warrants is that independent and neutral judges should determine impartially and objectively the legality of the execution of compulsory investigation. It does not mean a judicial control by the prosecution. Recently the prosecution is criticized for the Infringement of the autonomy of the police investigation and judicial review of a warrant by unfairly dismissed the warrant application of the police officer in the prosecution based on the prosecutor``s constitutional monopoly claims of a warrant. Meanwhile, in relation to the investigation of organized crime, drugs offence, terrorist crime etc, despite the importance and necessity of the telecommunication investigation by the investigation agency, the freedom of communication is easily infringed even if there is abuse of provision of a communication confirmed data for telecommunication investigation. Article 13 of Protection of Communications Secrets Act provides that it is necessary to take a warrant, which is issued by a judge in case of requesting to the provision of a communication confirmed data by the investigation agency in order to protect the freedom of communication. This is to ensure strict judicial control and review under the warrant systems. By the way, it is problem what is the legal nature of requesting to the provision of a communication confirmed data according to article 13 of Protection of Communications Secrets Act and that it is proper that prosecutor is the only subject of requesting to the provision of a communication confirmed data. Therefore, this study examines the legal nature of requesting to the provision of a communication confirmed data and the subject of requesting to the provision of a communication confirmed, which is allowed only to prosecutor. And the most important conclusion of this article is that a police officer who has the qualification as a lawyer should be given the right to request of the provision of a communication confirmed data like the prosecutor. In addition to this, a revision of Protection of Communications Secrets Act and its institutional measures are suggested.

2피고인의 진술거부권과 형사소송법 제314조의 진술불능사유 - 대법원 2013.6.13. 선고 2012도16001 판결에 대한 평석-

저자 : 최석윤 ( Suk Yoon Choi )

발행기관 : 한국비교형사법학회 간행물 : 비교형사법연구 16권 2호 발행 연도 : 2014 페이지 : pp. 25-47 (23 pages)

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In this paper, we commented on target precedent by closely studying issue of 'the defendant's right to refuse to make statements and the grounds of the statement incapacity of § 314 of the criminal procedure``. The main contents of this paper are like below. First, viewed in light of revision object of § 314 of the criminal procedure, and regulations related to right to refuse to make statements, the situation when the defendant performs the right to refuse to make statements does not apply to 'the times when it is impossible to make statement by other reasons accordingly`` of § 314 of the criminal procedure. Additionally the issue of the target precedent is the meaning of 'the times when it is impossible to make statement by other reasons accordingly``, and whether the situation when the defendant performs the right to refuse to make statements is applied to 'the times when it is impossible to make statement by other reasons accordingly`` of § 314 of the criminal procedure. Second, the grounds of the statement incapacity of § 314 of the criminal procedure means 'the one who requires statement in pretrial procedure or a fixed day for public trial is unable to make statement by death, illness, foreign residence, unknown whereabouts, and the times when it is impossible to make statement by other reasons accordingly``. This also accords with the comparative law review result with foreign legislation, like American, German, and Japanese law. Additionally. 'the times when it is impossible to make statement by other reasons accordingly' should be interpreted, limited to situations when it is objectively, and physically impossible to make statements, like in situation of death, illness, foreign residence, and unknown whereabouts, also in situations when person making a statement is missing or is an amnesiac or is unable to make statement due to the shock from the harm. Third, there is no precedent on defining whether defendant pursuing right to refuse to make statements falls under 'the times when it is impossible to make statement by other reasons accordingly`` of § 314 of the criminal procedure and the reference discussing this case is nonexistent. However, when viewed in light of the perspective that 'the times when it is impossible to make statement by other reasons accordingly`` should be limited to the stated examples of situations when it is objectively, and physically impossible to make statements like death, illness, foreign residence, and unknown whereabouts, the perspective that the exclusive rule of hearsay should be interpreted restrictedly as possible, revision objective of § 314 of the criminal procedure trying to intensify the elements grounding on principle of direct trial and principle of concerned public trial, target precedent ruling that "when the defendant performs the right to refuse to make statements is no relevant to 'the times when it is impossible to make statement by other reasons accordingly`` of § 314 of the criminal procedure." is proper. To conclude, target precedent as the first ruling on ``the times when it is impossible to make statement by other reasons accordingly`` of § 314 can be evaluated as ``another turning point for heading towards procedure of criminal cases of a country governed by law``. By the target precedent, when the defendant refuses to make statement on the paper that the defendant filled out, the way to accept admissibility of evidence in nature was caused to be fundamentally closed. However, situation of such is to be born to guarantee the fundamental human rights of the public in the procedure of criminal cases in a country governed by law and the investigative agency should find way in solving this problem by using scientific investigation.

3세관직원의 국제우편물 개봉,시료채취와 수사기관의 통제배달 -대법원 2013.09.26. 선고 2013도7718 판결의 평석을 중심으로-

저자 : 심희기 ( Hui Gi Sim )

발행기관 : 한국비교형사법학회 간행물 : 비교형사법연구 16권 2호 발행 연도 : 2014 페이지 : pp. 49-71 (23 pages)

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The '2013do7718'decision of Korean Supreme Court (2013do2511) was declared by 'Korean Supreme Court`` (hereafter 'KSC``) in September, 2013. The decision is very important, because it became the first decision of KSC which treated the issues of the so-called controlled delivery of international package. The methodology of this review is the comparative analysis of this decision with comparable ones of U. S. Supreme Court decisions, especially 'Illinois v. Andreas (1983)' and 'United States v. Ramsey (1977)' The technique of controlled delivery is used when a consignment of illicit drugs is detected and allowed to go forward under the control and surveillance of law enforcement officers in order to secure evidence against the organizers of such illicit drug traffic. This technique has been proved effective in some countries in identifying and bringing to justice principals, organizers and financiers of the illicit drug traffic. The controlled delivery technique is compatible with the requirements of the Single Convention on Narcotic Drugs, 1961, but its application depends on the particular legal and administrative provisions in the countries concerned. The technique merits wider use, and it does not involve any element of entrapment. It has been used most effectively when illicit drugs are discovered in unaccompanied freight consignments or in the post. Controlled deliveries involving a courier present special difficulties and should be treated with caution. In a controlled delivery, security of information is of paramount importance as is the appropriate knowledge and co-operation of the law enforcement authorities. Such co-operation is essential between the country in which the initial detection of drugs has occurred, transit countries and the country of final destination. A number of important detections have been made as a result of speedy international co-operation of this type between law enforcement authorities. Controlled delivery is not governed by law in South Korea. In practice, it is subject to the tactical discretion of the criminal prosecution authorities. The '2013do7718'decision of Korean Supreme Court would be the general guidelines to regulate the prosecution's future Controlled delivery practices.

4아동포르노그래피 처벌 목적에 따른 관련 규정 개선방안

저자 : 이원상 ( Won Sang Lee )

발행기관 : 한국비교형사법학회 간행물 : 비교형사법연구 16권 2호 발행 연도 : 2014 페이지 : pp. 73-96 (24 pages)

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Children are the future of our nation. When they grow up in a healthy way, we are able to see bright and healthy future of our nation. By extension, they are the future of the entire world. Therefore, we should remember that crimes against them will have negative and harmful impacts not only on our society, but also on the entire world. That is why many nations, international organizations and agencies are put their efforts in preventing children from becoming a victim of crimes targeting them. Despite those endeavors, we are not experiencing a decrease in the number of child porn-related crimes and those crimes remain a grave threat to our children. Therefore, countries around the world already have strong actions in place to punish those committing these crimes. However, it is necessary for us to think again about whether we have proper punishment system in place to serve the purpose for punishment of child porn. Appropriate levels of legal responsibilities should be imposed depending on different types of actions such as production, distribution, posting and possession of child porn. There is a need to look at the concept and scope of child porn closely and to check whether we have the appropriate punishment system for it. This paper examined the concept and scope of child pornography in Korea, international trend in child porn-related laws, related legal system in Korea and how to improve it. As a result, I came to realize that there is still a strong need to punish those responsible for child porn, but we need to establish a reasonable legal system related to child porn. To impose heavier punishment for the crime would be ineffective and improper. The primary purpose of our laws regarding child porn should be to prevent child sexual abuse and exploitation. To stop the production of child pornography through measures to control child porn consumers would be considered a secondary purpose. It could also be regarded an important, but secondary purpose of our laws to put responsibilities on ISPs to ban access to child porn contents online. What is the most important thing is to establish a reasonable and systematic legal system governing child porn. I believe that this paper offers meaningful suggestions, though there is room for improvement, on this issue. Consequently, it is needed to revise the concept and definition of child porn and to correct our legal system and punishment for child porn in a way that reflects realities of the current situations. In particular, it is important to impose a proper amount of punishment depending on the different types of actions rather than solely using excessive punishment.

5프랑스 형사증거법상 증거자유주의에 관한 연구

저자 : 유주성 ( Ju Sung Yoo )

발행기관 : 한국비교형사법학회 간행물 : 비교형사법연구 16권 2호 발행 연도 : 2014 페이지 : pp. 97-126 (30 pages)

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Le Code francais de procedure penale ne connait pas de dispostion generales relatives a la preuve en matiere penale. Sur la base de dispositions eparses, essentiellement tiree des articles 427 et suivants du Code de procedure penale consacres a l'administration de la preuve devant le tribunal correctionel, la Jurisprudence a forge des principaux generaux. Associes a des garanties puisees dans le bloc de constitutionalilte et dans la Convention europeenne des droits de l'homme ; ils forment une theorie genenrale de la preuve en matiere penale. La question de la preuve en matiere penale est dirigee par trois grandes questions : <>. La premiere de ces questions fait reference a la charge de la preuve. La procedure penale est impregnee du principe fondamental de la presomption d'innocence qui impose a l'accusation de demontrer la culpabilite de la personne poursuivie, c``est-a-dire de renverser le jeu de la presomption. Il decoule de ce principe que la personne mise en cause est en toute logique dispensee d'avoir a etablir son innocence. Cependant, l'enjeu du proces penal ne peut se satisfaire du role passif de la personne mise en cause dans l'etablissement de son innocence. Loin d'etre analysee comme une atteinte a ses droits fondamentaux, la possibilite pour la personne mise en cause de rapporter des elements de preuve de nature a etablir son innocence ou a attenuer sa responsabilite constitue une chance supplementaire, pour le proces penal, de tendre vers son objectif de verite et de prevention de l'erreur judiciaire. Sur le point de savoir comment prouver, la procedure penale affirme ``le principe de la liberte de la preuve`` en vertu duquel tous les elements de preuve sont susceptibles d'etre utilises. Cette liberte de la preuve n'a de pertinence qu'avec le principe de l'intime conviction du juge qui repond a la troisieme question.

6한국의 조직범죄 발생 현황과 형사법적 개선방안

저자 : 윤지영 ( Jee Young Yun )

발행기관 : 한국비교형사법학회 간행물 : 비교형사법연구 16권 2호 발행 연도 : 2014 페이지 : pp. 127-153 (27 pages)

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Traditionally, the organized crime debates were centered on violent criminal organizations and drug trafficking organizations at the regional and national levels. But in recent years, the face of organized crime has changed, and the threat is broader and more complex than ever. As relationships between criminal networks have become more flexible and active due to the development of transportation and communication technology, the organized crime has gradually become internationalized and intellectualized. Recognizing that the occurrence patterns and characteristics of the organized crime has changed according to the times, this paper analyzes the current trends about Korean organized crime focusing on violent criminal organizations and drug trafficking organizations. Meanwhile, international cooperation has required to find out countermeasures about transnational organized crime because individual countries`` abilities to deal with such crime were circumscribed. Therefore, the General Assembly of the United Nations adopted the “United Nations Convention against Transnational Organized Crime(Organized Crime Convention)” in 15 November 2000 and its entry into force in 2003 also marked a historic commitment by the international community to counter organized crime. Korea signed the Organized Crime Convention and the two Protocols (on Trafficking in Persons, Smuggling of Migrants) in 13 December 2000 and signed the Protocols on Trafficking of - 153 - Firearms in 4 October 2001. To implement the Organized Crime Convention through national legislation, Korea Government has enacted and revised the related statutes drastically. This paper reviews the current law regarding organized crime modified by the international standards and proposes the improvement method from the perspective of criminal law to control organized crimes more strategically and systematically.

7흑사회성 조직범죄의 구성과 처벌에 대한 간단한 논의

저자 : 주경평 ( Zhou Qing Ping )

발행기관 : 한국비교형사법학회 간행물 : 비교형사법연구 16권 2호 발행 연도 : 2014 페이지 : pp. 155-170 (16 pages)

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Organized crimes threaten politics, economics and societies in a nation. In 1985 the United Nations declared organized crime, narcotic crime and terrorism as three big crimes threatening human beings. Since the end of 20th century China has started punishing organized crimes and in 1997, for the first time, regulated organized crimes in its criminal law. According to the law the founder of a gang should be responsible for any crime which any member of the gang committed. In addition, Chinese criminal law distinguishes violence organizations or gangs from other criminal organizations and it confronts strictly against the formers. Recently organized crimes which have invaded into legitimate economic market have become so smart and crafty that they have disguised their illegal activities as legal ones. In conclusion, prevention such as community corrections or working support system for released prisoners becomes as important as strict control of gang members.

8마약류 범죄에 대한 형사법적 대응에 관한 일고찰

저자 : 이인영 ( In Young Lee )

발행기관 : 한국비교형사법학회 간행물 : 비교형사법연구 16권 2호 발행 연도 : 2014 페이지 : pp. 171-196 (26 pages)

다운로드

(기관인증 필요)

초록보기

It is very important to devise preventive actions to prevent narcotic drug crimes. The punishment system taking a heavy penalty system on narcotic drug crimes may achieve an effect at the general preventive level. However, there are some limitations. In addition to criminal law responses to narcotic drug crimes, the preventive actions should be established from the social and cultural aspect. Also, measures for the treatment, and rehabilitation of drug addicts in correctional facilities should be established, and an efficient management policy for drug addicts, who return to society, is necessary. Actually, the effectiveness needs to be ensured. The punishment system on the narcotic drug crimes maintains the basis of severe punishment policy on the use activity, as well as on distribution activity with a differential punishment system by activity type. However, more debate is needed on whether the heavy punishment system on simple use activity of soft narcotic drugs with relatively low addictiveness, risk, or risk possibility, is a proper criminal policy alternative. Under the current system, a punishment on simple use seems to be shifted to treatment-focused policy, rather than punishment. The disposition of treatment system needs to be operated, centered on treatment subjects to the extent that the treatment protection or correction treatment on narcotic drugs offenses can get actual effectiveness, rather than just formality. Namely, the disposition of treatment should be carried out for enough time to induce behavioral change. Also, a procedure to request narcotic drugs offenses to a treatment center from the investigation and prosecution stages seems to be necessary, before proceeding to the procedure in public trial. Meanwhile, the investigation of narcotic drug crimes having the characteristics of organizational crime need an action of special investigation techniques, such as controlled delivery, electronic monitoring, and undercover operation, and the specific enactment of legally applicable provisions is required. UN Agreement and others recommend the establishment of funds securing finances with confiscated illegal property to prevent narcotic drug crimes, and organizational crimes, and also to support crackdown. In consideration of such a recommendation, Korea can consider the adoption of a confiscated assets fund system for the purpose of effective crime control for deprivation of benefits from crimes, and policy enforcement from the preventive dimension including the promotion of law enforcement agency``s active work performance and treatment of addicts.

9중국 마약 범죄 형사 입법에 대한 반성 - 유형화사유의 시각으로 -

저자 : 리자평 ( Li Ziping )

발행기관 : 한국비교형사법학회 간행물 : 비교형사법연구 16권 2호 발행 연도 : 2014 페이지 : pp. 197-215 (19 pages)

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The criminal law of china has experienced from drug-related criminal legislation process is relatively simple to gradually improve, and presents the rigor, the characteristics of the level and severity. However, our current drug-related criminal legislation mainly exist in typing class is divided into chaos, to distinguish between different objects, such as inappropriate behavior type void, make defects. Because of this, can we consider using typed method, a targeted from redrawing category, type of differentiate objects, add behavior law, etc to be perfect, delete it again.

10해외은닉재산의 국내환수를 위한 형사법적 대응

저자 : 이경렬 ( Kyung Lyul Lee )

발행기관 : 한국비교형사법학회 간행물 : 비교형사법연구 16권 2호 발행 연도 : 2014 페이지 : pp. 217-253 (37 pages)

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Considering the current size of foreign trade of Korea and the volume of Capital that could be moved freely in and out of the country, the outflows of illegally acquired assets or cash will increase as much. In particular, the last May press news on the offshore tax evasion through paper companies in tax heaven countries drew the Korean medias`` attention and the Korea Assembly started lawmaking for the resolution. Illicit capital outflows through tax evasion and money laundering may be effected adversely to daily economic market, eventually creating Underground Economy. Illegally earned monies for to protect underground economy are often used in bribing officials and it could be lead to a severe social issue caused by multinational corruption. Endeavoring to reduce tax of multinational companies pursuing profit maximization should not be blamed. However, this endeavor should not become means of tax evasion or excuses of raising slush or outflows of illicit assets The national criminal authorities are apt to be exposed to so called cross-border white collar crime. For a case of concealment of domestic assets, the criminal authorities may not recognize the incident itself. Even if they recognize, assistance from offshore bank for transaction information and coordination from offshore foreign judicial authorities regarding restitution of illicit assets are deemed as crucial factors. Since restitution of illegal assets from abroad to domestic involves ``Global Asset Recovery`` factors and therefore, it has to be treated as differently from the ordinary domestic restitution. Since restitution of illegal assets from abroad to domestic involves ``Global Asset Recovery`` factors and therefore, it has to be treated as differently from the ordinary domestic restitution. Therefore, a review on UN Convention against Corruption which enables cross-border restitution is needed. One step further, issues on the implementation of domestic law enforcement of the international treaties on the legislative measures for the criminal has been studied. This articles, delivered at the ``Korea-China Seminar on Global Safety Society``, includes reviews about the current criminal legislation on foreign concealment of domestic assets as well as the implementation and the interpretation of these legislation in practical basis. Then it cooperates with the efforts of recent criminal by looking into the proposition of legislative measures concerning national economic development and the international community to enhance the transparency and fairness, restitution of concealment in response to the limitations of the current financial order.

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주제별 간행물
간행물명 수록권호

KCI등재

금융법연구
16권 2호 ~ 16권 2호

KCI등재

법조
68권 4호 ~ 68권 4호

KCI등재

법철학연구
22권 2호 ~ 22권 2호

KCI등재

법과정책
25권 2호 ~ 25권 2호

KCI후보

일감부동산법학
19권 0호 ~ 19권 0호

KCI등재

과학기술법연구
25권 3호 ~ 25권 3호

KCI등재

상사법연구
38권 2호 ~ 38권 2호

KCI등재

법학연구
27권 3호 ~ 27권 3호

연세 글로벌 비즈니스 법학연구
10권 1호 ~ 10권 2호

KCI등재

형사정책
31권 2호 ~ 31권 2호

KCI등재

비교형사법연구
21권 2호 ~ 21권 2호

KCI등재

국제거래법연구
28권 1호 ~ 28권 1호

KCI등재

일감법학
43권 0호 ~ 43권 0호

KCI후보

영남법학
48권 0호 ~ 48권 0호

KCI등재

민주법학
70권 0호 ~ 70권 0호

BFL
89권 0호 ~ 89권 0호

KCI등재

법조
68권 3호 ~ 68권 3호

KCI등재

경찰법연구
17권 2호 ~ 17권 2호

KCI등재

서울대학교 법학
60권 2호 ~ 60권 2호

KCI등재

법학논집
23권 4호 ~ 23권 4호
발행기관 최신논문
자료제공: 네이버학술정보
발행기관 최신논문
자료제공: 네이버학술정보

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