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경찰법연구 update

Journal of police and law

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수록정보
수록범위 : 1권1호(2003)~17권1호(2019) |수록논문 수 : 311
경찰법연구
17권1호(2019년 02월) 수록논문
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KCI등재

1수사준칙의 제정 방안에 관한 연구

저자 : 김태명 ( Kim Tae-myeong )

발행기관 : 한국경찰법학회 간행물 : 경찰법연구 17권 1호 발행 연도 : 2019 페이지 : pp. 3-34 (32 pages)

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At present, a police investigation is directed by the prosecutors' office once a case develops beyond the preliminary investigation stage. However according to the agreement on restructuring criminal investigations reached by the prosecution and the police agency on June 21. 2018, police will be authorized to close cases, and freed from prosecution's command in conducting investigations.
The plans outlined in the agreement include a number of measures to prevent the police from abusing its powers and ensure the transparency of investigations. Although the police will be given the rights to end an investigation without transferring it to the prosecution, it will be required to transfer a case if demanded by parties involved in the case. And the prosecution will retain sole rights to seek prosecution and to apply for warrants, but much of its investigative powers will be reduced.
In addition, the agreement asked the Minister of Justice to improve the criminal investigation rules in consultation with the chief of the National Police Agency and the Public Prosecutor General.
This Paper reviewed the current laws and regulations, and proposed forms of law and contents in improving the Criminal investigation Rules. And it also included measures to prevent investigative agencies from abusing its powers and ensure the transparency of investigations.

KCI등재

2통신사실확인자료 제공 제도의 문제점과 개선방향

저자 : 이호중 ( Lee Ho-joong )

발행기관 : 한국경찰법학회 간행물 : 경찰법연구 17권 1호 발행 연도 : 2019 페이지 : pp. 35-64 (30 pages)

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On June 28, 2018, the Korean Constitutional Court has held the collection of cell tower metadata and the collection of real-time location data by criminal investigative authority based on Article 13 (1) of Protection of Communications Secrets Act(PCSA) as unconstitutional and ordered reform enactment until 31 March, 2020.
This article analyzes the general problems of the communication confirmation data(so-called 'metadata') provision system and proposes a reform direction of Article 13 (1) of PCSA.
Although communication metadata is not information about communication contents, comprehensive analysis of metadata can not only indirectly deduce the contents of communication but also infer internal activities related to the privacy of the information subject. Therefore, the traditional theoretical premise that the intensity of infringement of fundamental rights by the collection of communication metadata is lower than the collection of contents data is no longer valid today. Moreover, it is also possible to provide real-time metadata in the future according to Article 13 (1) of PCSA, which should in fact cause the infringement of the fundamental rights at the same level as the contents data interception. Nevertheless, the provision of communication metadata is very broadly and easily permitted under the comprehensive requirement of "necessity for criminal investigation" and without limitation of applicable crimes or target persons.
Therefore, fundamental reform of the system for providing the metadata is indispensable. First, the applicable crimes should be limited to a level similar to that of the eavesdropping. Second, the target persons should be limited to the person who is suspect, mediator for the suspect, or the owner of the telecommunication account for the suspect. Third, the procedural requirements shall specify the proportionality and complementarity requirements as well as the specific crime charges of target crimes. This article emphasizes that it is appropriate to strictly limit the collection of metadata to exceptional and supplementary investigation methods.
As a result of the improvement of the communication data provision system as a whole, more strengthened requirements should be set up on the collection cell tower metadata and collection of location data.

KCI등재

3물적증거의 가치에 대한 비판적 고찰 - 수사절차 개혁논의와 관련하여 -

저자 : 김면기 ( Kim Myeon-ki )

발행기관 : 한국경찰법학회 간행물 : 경찰법연구 17권 1호 발행 연도 : 2019 페이지 : pp. 65-93 (29 pages)

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The kind of an argument that the investigative process should focus on collecting objective and neutral physical evidence, instead of collecting testimonial evidence, seems to be considered as a norm of the investigative reform. The recent governmental efforts on the reforms of investigative procedures reflect particularly on the improvement of the methods and procedures of the police interrogation. On the other hand, efforts to improve the investigative process of collecting physical evidence are rarely seen, probably because of the widespread belief on the objectivity, neutrality, and accuracy of physical evidence.
However, since physical evidence is gathered, analyzed, submitted, and evaluated by human beings, it is difficult to regard that physical evidence is necessarily objective and neutral. And the aspect of circumstantial evidence in physical evidence necessarily involves a subjective inference. If the various cognitive biases in the criminal procedure affect the subjective aspects of physical evidence, objectivity, neutrality and accuracy of physical evidence will also be affected. This paper examines the problems that may arise in the process of collecting, analyzing and submitting physical evidence by reviewing real cases.
In many areas, a shift in the way of understanding physical evidence is required. First, it must be recognized that the excessive dichotomy between physical evidence and testimonial evidence would not help grasp physical evidence used in criminal proceedings. It is also necessary to understand the effects of human's cognitive bias on physical evidence in devising the investigative process reform. Finally, considering the strong weight of forensic evidence, more attention should be paid to the process of forensic evidence. As the reliance on physical evidence increases in the investigation, the process and method of using physical evidence should be equally elaborated.

KCI등재

4문재인 정부 자치경찰제 도입방안의 의의와 과제

저자 : 황문규 ( Hwang Mun-gyu )

발행기관 : 한국경찰법학회 간행물 : 경찰법연구 17권 1호 발행 연도 : 2019 페이지 : pp. 95-119 (25 pages)

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The Local Police System of the Moon jae-in Administration was finally established. The Presidential Committee on Autonomy and Decentralization (The Committee) reviewed various models on the local police system, especially the model that police reform committee introduced. However, the model of the police reform committee was considered that there was a concern about confusion in the field of police due to artificial division of the police affairs office, failing to overcome the limitation of the Jeju local Police System.
First of all, it was tried to modify the authority and office scope through '+ ⍺' or '-⍺' in the police reform committee. However, it should not be overlooked that the police box is the starting point of 'comprehensive police service' where most police activities are started. This led to the perception that the work of the police box should not be dispersed.
However, as a result of the announcement of the 'agreement on readjusting investigation right', separation of the judicial (police) and administrative (general) police(that means the establishment of the National investigation headquarters) is also required. The question was how to combine this with the introduction of the local police system. In this regard, we can not help but consider the autonomous police system, which has extremely limited investigative rights.
Therefore, the introduction of the local police system has a limit in which it is inevitable to compromise. Therefore, there are a few challenges that need to be overcome until it is finally implemented so as not to distort the introduction of the autonomous police system provided by the Committee. That is, to raise public awareness of the autonomous police system, to overcome the public concern about the confusion caused by the change of the police system, and to bring about the cooperation of the police, which is a direct stakeholder in introducing the autonomous police system.

KCI등재

5거짓신고에 관한 법적 문제

저자 : 서정범 ( Suh Jung-bum )

발행기관 : 한국경찰법학회 간행물 : 경찰법연구 17권 1호 발행 연도 : 2019 페이지 : pp. 121-143 (23 pages)

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Ⅰ. Entering
Today, the issue of false reporting(or fake emergency call) is a major hindrance to police operation, causing a huge waste of police force and creating a vacuum in social security. Therefore, it is necessary to find a systematic way to deal with the problems of false report which mark the starting point of this article. Below, I will discuss the question of finding efficient police countermeasures against false reports.
Ⅱ. The traditional countermeasures of police against false reports
It is true that Korean Police have been dealing with the problem of false reports through criminal and civil measures, but they have failed to function as an effective solution. The most typical police response to false reports is to hold the false reporters criminally liable. However, this approach had the problems and limitations. In the 2000s, a significant change was marked in the way police responded to false reports in that the police began to claim damage for torts from false reporters. However, there still exist following limitations and problems with this civil approach.
Ⅲ. Seeking for New countermeasure of Police against False Reports - Police Law Measures
With this article I point out the limitations of such criminal and civil measures to false reports. And I suggest an adoption of a paradigm of Police (Administrative) Law, in particular approaches based on Police Cost Law (Polizeikostenrecht in German) theory. The main point of the debate is whether police can charge the false reporter -a so-called 'danger inducer' who has Police Liability (Polizeiverantwortung) under the theory of Police Administrative Law.
In addition, if unliable citizens are harmed by the danger-prevention measures taken by the police based on false reports, it is required to seek remedies for them, one of which is an compensation for loss to the victims.
Ⅳ. Conclusion
In order to root out the problem of false reporting and to properly deal with it when happens, it is imperative that the police have a legal basis of imposing police costs to false reporters and of demanding reimbursement for compensation which the police paid to unliable citizens. Above all, a public recognition that the police can charge false reporters for police costs should be established.

KCI등재

6일본 재판원재판의 현황과 국민참여재판

저자 : 김영중 ( Kim Yeong-jung )

발행기관 : 한국경찰법학회 간행물 : 경찰법연구 17권 1호 발행 연도 : 2019 페이지 : pp. 145-168 (24 pages)

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The Saiban-in system was introduced in 2009 for people to participate in criminal trials. In the early stage of the introduction, discussions about whether to choose a jury system or lay judge system were active, as in Korea, but unlike Korea, which mainly focuses on jury system, in Japan selected a lay judge system.
It seems to have a relatively positive evaluation of the operation after the introduction of the saiban-in trials in japan. Especially in the case of the Supreme court of japan. However, in contrast to the positive evaluation in japan on the saiban-in trials, some scholars have pointed out improvements in various aspects such as sentencing, death sentences, sex offense, ans so on.
The citizen participation in criminal trial was introduced in Korea at 2008 ahead of Japan. Unlike the saiban-in trials, the citizen participation in criminal trial was not activated due to lack of awareness of the citizen and weakness of the system. It is also possible to evaluate that the trials failed to settle down because it had a lot of problems, such as giving problems to verdicts and expanding the case. It is time to move forward with a single step toward establishing and revitalizing the system, reflecting the purpose of pursuing the jury system.

KCI등재

7일본 개정형법의 성범죄 처벌규정에 관한 검토 - 처벌규정의 체계 및 시사점을 중심으로 -

저자 : 장응혁 ( Chang Eung-hyeok ) , 정진성 ( Cheong Jin-seong )

발행기관 : 한국경찰법학회 간행물 : 경찰법연구 17권 1호 발행 연도 : 2019 페이지 : pp. 169-192 (24 pages)

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On June 16, 2017, the “Law Amending a Part of the Penal Code”, which mainly addresses the amendment of penalties for sex crimes, was enacted in Japan, and the law went into enforcement on July 13.
This amendment bill is a major amendment to the provisions related to sex crimes in Japan 110 years after the enactment of the Criminal Act. The main contents are revision of constitutional requirement for rape, change od crime's name, increase of statutory form, creation of punishment such as impurity act due to the influence of detainee, abolishment of offense subject to complaint.
This amendment is highly appreciated in that it reflected the opinions of people from various fields including practitioners, scholars, psychiatrists, and clinical psychologists as well as sex crime victims in the drafting stage and the deliberation stage at the Parliament for revising the penalties for sexual crimes.
The contents of the amendment have great implications for legal theories and practices in Korea.

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1연안해역에서 석유오염물질의 세균학적 분해에 관한 연구

(2006)홍길동 외 1명심리학41회 피인용

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