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한국형사정책학회> 형사정책> 미투(Me Too)운동이 야기한 형사법적 쟁점 검토 -형법 및 성폭력처벌법에 대한 개정법률안을 중심으로-

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미투(Me Too)운동이 야기한 형사법적 쟁점 검토 -형법 및 성폭력처벌법에 대한 개정법률안을 중심으로-

A Review on Criminal Aspect Issues Caused by Me Too Campaign - A Focus On the Revised Bill of Criminal Law and Act on Sexual Crime of Violence -

박찬걸 ( Park Chan Geol )
  • : 한국형사정책학회
  • : 형사정책 30권2호
  • : 연속간행물
  • : 2018년 08월
  • : 265-289(25pages)

DOI


목차

Ⅰ. 문제의 제기
Ⅱ. 새로운 범죄유형의 신설
Ⅲ. 형사처벌의 강화를 위한 조치
Ⅵ. 글을 마치며

키워드 보기


초록 보기


						
The case of sexual violence committed in organizations resorting to powerful influence has recently been revealed across the entire society. One of stark characteristics of such a case is that perpetrators have committed the sexual crime of violence, constantly, taking advantage of their social positions, and inflicted serious physical and mental suffering on the damaged. In order to prevent perpetrators from committing another sexual crime of violence and the potential damaged- from occurring, there have appeared courageous behaviors to reveal, in public, the fact of the damages from sexual violence widespread in each circle and sector, with situations changing across the ages- that perpetrators committed, resorting to their superior social positions. At this, the National Assembly brought what's called legislative bills on Me Too Campaign to numerous related committees. In this regard, the research study will review about criminal aspect issues caused by Me Too Campaign, with the main focus on the revision bills on major legislations to respond to sexual violence: Criminal Law and Act on Sexual Crime of Violence.

ECN

I410-ECN-0102-2018-300-004052473


UCI

I410-ECN-0102-2018-300-004052473

간행물정보

  • : 사회과학분야  > 법학
  • : KCI 등재
  • : -
  • : 연3회
  • : 1226-2595
  • :
  • : 학술지
  • : 연속간행물
  • : 1986-2018
  • : 654


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발행기관 최신논문
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1청와대의 '수사권 조정안'과 검찰 개혁

저자 : 김성룡 ( Kim Sung-ryong )

발행기관 : 한국형사정책학회 간행물 : 형사정책 30권 2호 발행 연도 : 2018 페이지 : pp. 7-35 (29 pages)

다운로드

(기관인증 필요)

초록보기

Es ging und geht um die Reform der Staatsanwaltschaft seit mehreren Jahrzehnten. Leider war es immer die Ausweiterung der Polizeigewalt, die als Mittel der Reform der Staatsanwaltschaft eingesetzt werden sollte. Der Ausbau der Verwaltungsbefugnis und sogar sog. der Aufstieg in den Polizeistaat wurden aus der Sorge gedrängt, absichtlich oder unabsichtlich. Vor einigen Monaten kundigte auch die jetzige Moon-Regierung einen Plan der sog. Umverteilung der Untersuchungsbefugnis zwischen Staatsanwaltschaft und Polizei. Vor allem die Frage der Abschaffung des Weisungs- oder Anordnungsrechts der Staatsanwalt ist ein zentalres Thema. Das Verbot direkter oder personeller Ermittlungen des Staatsanwaltschaften ist auch ein weiteres Thema.
Dieser Artikel weist darauf hin, dass die Abschaffung der Untersuchungskontrolle der Staatsanwalt gegenuber die Ermittlungspersonen, also Kriminalpolizei nicht der richtige Weg zur Staatsanwaltschaftsreform ist. Und er versucht auch zu beweisen, dass sie dem europäischen Standard des Europäischen Rates im Bezug auf den Status von Staatsanwälten widerspricht.
Um die richtige, effizielle und legitime Richtung zur Staatsanwaltsreform zu finden, hat der Autor mehrere statistischen Angaben vom CCPE und CEPEJ eingefuhrt. Er argumentiert konsequenterweise, dass die richtige Richtung der Staatsanwaltschaftsreform in der Unabhängigkeit der Staatsanwaltschaft zu finden ist.

2검·경 수사권조정 합의안의 내용과 의미에 대한 일고

저자 : 박용철 ( Park Yong Chul )

발행기관 : 한국형사정책학회 간행물 : 형사정책 30권 2호 발행 연도 : 2018 페이지 : pp. 37-61 (25 pages)

다운로드

(기관인증 필요)

초록보기

In June 2018, the governmental delegate including Prime Minister, two ministers from Ministry of Justice and Ministry of Government Administration and Home Affairs reached an agreement regarding revision of investigative authority between the Police and the Prosecutions. The main points of the Agreements are (1) the Police is going to have the full authority to investigate crimes without interference/supervision from the Prosecutions prior to committing the case to the Prosecutions, (2) Giving away the prosecutorial jurisdiction over investigation to the Police. The Agreement necessarily involves lots of amendments regarding the investigative power structure between the Police and the Prosecutions. However, at the moment, the Agreement lacks both details regarding what positions need to be taken for the better of both investigative agencies and any possible revisions in constitutional law as well as criminal procedure. At the same time, the Agreement is being criticized to be an aggravating factor between the two agencies because it does not give any solution to fix the power structure issue when the Police refuses to follow the order or request made by the Prosecutions regarding the on-going investigations. In this Article, the writer tries to pinpoint the loopholes existing in the Agreement.

3수사절차에서 1차 수사종결권에 대한 고찰

저자 : 이원상 ( Lee Won Sang )

발행기관 : 한국형사정책학회 간행물 : 형사정책 30권 2호 발행 연도 : 2018 페이지 : pp. 63-86 (24 pages)

다운로드

(기관인증 필요)

초록보기

Recently, the Ministry of Justice, the Ministry of Public Administration and Security, the prosecution and the National Police Agency agreed to adjust their investigative rights. The agreement includes the authority of the police to conclude the primary investigation without any intervention by the prosecution. To sum up the reasons, there are abuses of investigative power by the prosecution, cases of complaints by the police over the prosecution's investigation direction, the exaggerated power of the prosecution that is not abroad, and the double investigation pain of the suspect. In theory, however, it is doubtful whether the contents of the agreement will improve the criminal procedure law system and protect citizens ' human rights. Moreover, more external controls are required than internal ones. Therefore, it is worrisome that the police's autonomous right to end the first investigation will benefit citizens.
The adjustment of investigative rights is not just a matter of distribution of power by authorities. It is a matter of protecting the human rights of citizens and dealing with crimes efficiently. Therefore, legal experts should closely examine and seek the full understanding of citizens. Moreover, the proposed agreement is not in the form of a completed bill. Several related laws should be amended according to the contents of the consultation. Therefore, the agreement must be thoroughly simulated to prevent legislative errors. And because it is related to various laws, it should be verified and supplemented by legal experts and present detailed bills. Then there should be a process of persuading citizens. That is the best way to reduce trial and error.

4경찰 수사개혁의 성과와 과제

저자 : 유주성 ( Yoo Ju Sung )

발행기관 : 한국형사정책학회 간행물 : 형사정책 30권 2호 발행 연도 : 2018 페이지 : pp. 87-113 (27 pages)

다운로드

(기관인증 필요)

초록보기

The police has the obligation and the responsibility to protect the people from danger. Above all, the 'police investigation', a judicial police activity, is endowed with various coercive powers to ascertain the criminal offense, to resemble the evidence and to search for the suspect, which can deprive the freedom of an individual and the human rights. Therefore, the primary goal of police investigation reform is to control the police investigation function and power not to be abused. However, there is concern that the possibility of human rights violations will be increased at the police investigation stage, with the separation of prosecution and investigation as a part of the public prosecution office reform which will shift toward strengthening autonomy in police investigations. In addition, it is pointed out the problem of the increase of the police investigations after the abolition of the National Intelligence Service investigation authority. The goal and direction of the police investigation reform is surprisingly simple even in a somewhat complicated terrain. The police investigation system should be made for all citizens. This paper examines the results and challenges of the police investigation reform centered on the recommendations of the "Police Reform Commission" which finished its activities for police reform for one year from June 16, 2017.

5사법경찰관의 '1차적 수사종결권'의 법제화 방안

저자 : 윤동호 ( Yun Dong-ho )

발행기관 : 한국형사정책학회 간행물 : 형사정책 30권 2호 발행 연도 : 2018 페이지 : pp. 115-132 (18 pages)

다운로드

(기관인증 필요)

초록보기

According to current law, judical police officers should transfer all criminal cases to public prosecutor after closing investigation. This is principle of mandatory transfer. So criminal justice agencies are overloaded. We are only focused on closing the case quickly and sending out it out of the procedure. It is an exit strategy. According to current law, police are the object of distrust. This paper insists that we should grant diversion power and trust to judical police officers. This diversion power means a discretionary power to release suspects. This can be compared to the discretionary power of prosecutor whether or not to prosecute.
There are two types of police diversion. The one is principle of discretionary booking or charging criminal case. It is necessary to control the influx of criminal cases at the early stage of criminal procedure. Despite victim's complaint, it is necessary to arrange for the police to autonomously judge whether or not to investigate criminal case. It is an entrance strategy.
The other is principle of discretionary transfer. To strengthen the responsibility of investigation, it is necessary to arrange for the police to autonomously judge whether or not to send the case to the public prosecutors. It is principle of discretionary transferring criminal case to the public prosecutor.

6검·경 수사권 조정 정부합의안에 대한 비판적 검토 및 합리적 대안 모색

저자 : 주승희 ( Ju Seung Hee )

발행기관 : 한국형사정책학회 간행물 : 형사정책 30권 2호 발행 연도 : 2018 페이지 : pp. 133-161 (29 pages)

다운로드

(기관인증 필요)

초록보기

Over the past few decades, there has been debate on whether police should be given greater investigative power such as giving police a mandate to close a case or file for an arrest warrant, independent of prosecutorial power. Readjusting the investiagtion rights and reforming the prosecution is also under key policy pledge by the Moon Jae-in government and the government said in mid-June it will empower police to conduct and close initial investigations in all cases independently of the prosecution as part of reform measures aimed at reducing massive concentration of investigative powers in the prosecution. The plans were outlined in an agreement reached by the prosecution and the police agency and was submitted to the National Assembly for review.
This article examines the pros and cons of the readjustment of investigation power and it analyzes the reform measures in the agreement for redefining the relationship between prosecutors and police in readjusting their investigative jurisdictions. It concludes that the measures don't correspond with their new 'horizontal' relationship and is in danger of reducing the effectiveness and efficiency of investigation process. For the more effective and efficient investigation and enhancing protection of the rights of suspects, this article proposes reform recommendations, such as separating prosecutors for investigation from prosecutors for prosecution and adopting a prosecutor's dispatching system to police stations.

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(기관인증 필요)

초록보기

According to the Government's June 21st Agreement for Reorganizaition of Investigative Prerogatives, police can drop cases without any prior supervision of prosecutors. As in current criminal procedure act only prosecutors can indict, preventing inappropriate case drop decision of police and prosecutors plays a pivotal role in maintaining public faith in the criminal justice. The June 21st Agreement stipulates police must transfer cases to the prosecution if those involved such as victims make complaints. This seems to be an airtight control of police's termination of investigation. However, closer look in respective of constitutional law reveals blind spots which might infringe the victim's constitutional right to make a statement to a criminal court's judge. These weak spots could breach the separation of powers doctrine as well. Unconstitutionality mainly comes from the vagueness of the word "victims" and from limiting the scope of complaints. As prosecutors' non-indictment decision also drop the case, it is same with police's non-transfer decision in nature. More than 60 years' experience of control on the prosecutors' non-indictment decision can shed light on the problem of the police's non-transfer control. Standing of complaints against the non-transfer decision should include the victims who are allowed to make a constitutional complaint against prosecutors' non-indictment decision under the present criminal procedure act. Prosecutors' control followed by judicial review must be made to the police's non-transfer decision. Criminal procedure act which prescribes these two elements can protect victim's fundamental rights to state his/her damage before a judge, and realize the separation of powers.

8한국 형사사법제도에서의 견제와 균형 원칙에 대한 비교법적 연구 -수사권 조정 논의에 즈음하여-

저자 : 강성용 ( Kang Sung Yong )

발행기관 : 한국형사정책학회 간행물 : 형사정책 30권 2호 발행 연도 : 2018 페이지 : pp. 199-232 (34 pages)

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(기관인증 필요)

초록보기

The Prosecutor's Office, an organization carrying out an imperative role in the criminal justice system, is a legacy of the principle of checks and balances attainable through a functional separation of powers. The principle of checks and balances achievable through a functional separation of powers has been recognized as a natural law based on an intrinsic human nature applicable to all times and places by all the states, and even long before the emergence of the concept of state as a sovereignty. However, ironically in Korea, the principle which brought forth the Prosecutor's Office in the criminal justice system has been collapsed by the Prosecutor's Office itself.
Even when no checks and balances on the natural function of the Prosecutor's Office―prosecution authority as its name signifies―exists in Korea unlike the other states compared such as U.S, U.K, France and Germany in this research, Korea is the only state where the Prosecutor's Office dominates an additional crucial function―investigation authority―in the criminal justice system. A discretionary authority to request a warrant as an indispensable investigative measure has been monopolized by the Prosecutor's Office. Furthermore, the Prosecutor's Office is prescribed with a robust authority to direct investigations of the National Police Agency backed up by a legal obligation of police officers to obey the directions of prosecutors and an authority to request a removal or disciplinary action against disobeying police officers. The Prosecutor's Office are provided with personnel and material resources as well as a legal authority to actually investigate crimes by itself.
The global standard is checks and balances attainable through functional separation of investigation and prosecution. However, despite of the fact that Korea requires a strict functional separation of investigation and prosecution to incorporate the principle of checks and balances into its criminal justice system more than any other states compared as checks and balances on the prosecution authority as a natural authority of the Prosecutor's Office is absent, the Prosecutor's Office in Korea dominates even investigations in addition to prosecutions. We have witnessed serious negative outcomes brought by the collapse of checks and balances and functional separation of powers allowing excessive or insufficient exercises of authorities by the Prosecutor's Office on its own discretion. Sadly, people―the ultimate source of any and all governmental power― have lost their belief in the Prosecutor's Office which was supposed to establish and promote the fairness and rule of law.
Prosecutors are not angels but men. All men having power ought to be mistrusted. Now it is time for the Prosecutor's Office in Korea to return to its original position in accordance with the principle of checks and balances and a functional separation of powers which gave birth to the Prosecutor's Office in the criminal justice system.
For this purpose, by analyzing impartial and proper methodological principles of comparative legal studies on the criminal justice system, this paper aims to provide the answers to the following questions: what and why important is the principle of checks and balances and a functional separation of powers as a natural law; in what manner and degree does the criminal justice system of other states comply with the principle; and what is the future direction and current problem of the criminal justice system of Korea from the perspective of such principle.

9검·경 수사지휘 논의에서 잊힌 문제 -특별사법경찰관리에 대한 수사지휘-

저자 : 이근우 ( Lee Keun-woo )

발행기관 : 한국형사정책학회 간행물 : 형사정책 30권 2호 발행 연도 : 2018 페이지 : pp. 233-261 (29 pages)

다운로드

(기관인증 필요)

초록보기

For decades already, the issue of judicial reform has always been on the list of our social change demands. There were various opinions on the old problems of the justice system and their solutions, but it was all frustrating because there were not many realizations. In the meantime, there has been a recent agreement between the Ministry of Justice and the Ministry of Public Administration and Security, and the head of the prosecution and the police. If this is enough, the problem is solved, and the conflict is sealed? It is doubtful that this issue is that the name of the ministers of the "ministries concerned" is different from that of the heads of ministries concerned, but it could be done if the ministers of the ministries agreed with each other.
Judicial reform was not easy to make in the past, not because the will of the power was lacking, or because the organizational resistance of interest groups was weak. It is the same as the college admissions system, which still remains a problem. All agree that it is a problem, but the solution is different because the perception of the cause is different. It is because the reality perception and the sense of value are in each one.
There is a problem that is easily forgotten in the process. In the present discussion, we will focus on the case of Special Judicial Police Officer in order to investigate the police officer forgotten temporarily. I hope that someday I will be able to discuss the necessity of neutrality and neutrality by reorganizing the national investigation system not as an institution-centered thinking but as a function center.

10미투(Me Too)운동이 야기한 형사법적 쟁점 검토 -형법 및 성폭력처벌법에 대한 개정법률안을 중심으로-

저자 : 박찬걸 ( Park Chan Geol )

발행기관 : 한국형사정책학회 간행물 : 형사정책 30권 2호 발행 연도 : 2018 페이지 : pp. 265-289 (25 pages)

다운로드

(기관인증 필요)

초록보기

The case of sexual violence committed in organizations resorting to powerful influence has recently been revealed across the entire society. One of stark characteristics of such a case is that perpetrators have committed the sexual crime of violence, constantly, taking advantage of their social positions, and inflicted serious physical and mental suffering on the damaged. In order to prevent perpetrators from committing another sexual crime of violence and the potential damaged- from occurring, there have appeared courageous behaviors to reveal, in public, the fact of the damages from sexual violence widespread in each circle and sector, with situations changing across the ages- that perpetrators committed, resorting to their superior social positions. At this, the National Assembly brought what's called legislative bills on Me Too Campaign to numerous related committees. In this regard, the research study will review about criminal aspect issues caused by Me Too Campaign, with the main focus on the revision bills on major legislations to respond to sexual violence: Criminal Law and Act on Sexual Crime of Violence.

1
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