소년범에 대한 벌금형 선고의 문제점과 보호처분으로 대체의 당위성에 대한 고찰

박찬걸(Park Chan-Geol),정광진(Jeong Kwang-Jin) 한양법학회 2017 漢陽法學 Vol.28 No.2

The Juvenile Act regulates an exception for criminal punishment against juvenile offenders under a specific age by reflecting characteristics of juveniles, which includes prohibition on the death penalty and life imprisonment against offenders under 18 years of age, prohibition on the sentence of relative penal servitude for an indeterminate term and detention in labor house, acknowledgement of the regulation on the mitigation for juveniles and relaxation of requirement for conditional release. In addition, necessary measures such as environmental adjustment for antisocial juveniles and protective disposition for correction of behavior may be imposed, and a series of such measures aim at helping juveniles to grow in going order. This way, basic structure of the current Juvenile Act which is dualized as criminal and protective procedures is considered a system based on the paternalism or thought of education that needs to consider for juvenile offenders who are different from adult offenders. With respect to the foregoing, the current Juvenile Act regulates ‘prohibiton on the detention in labor house’ out of punishments against juveniles as an exceptional provision for monetary penalty, which is considered a system that is acknowledged for the purpose of preventing transition and enhancement to a crime and limiting the effect of branding by blocking alternative disposition fundamentally through a short-term detention against juvenile offenders that default of fine is expected in some measure. This manuscript intends to point out many problems that occur as a result of sentencing a monetary penalty against juvenile offenders, and agitate active use of community service order as one of the measures for alternative enforcement. For the aforementioned, this manuscript will consider the present condition and problems of criminal punishment against juvenile offenders focusing on the present condition of criminal punishment against juvenile offenders, examination of exceptional clauses of criminal punishment against juvenile offenders, problems of the sentence of monetary penalty against juvenile offenders etc., and will finish discussion by generating appropriateness of substitution of monetary penalty to a protective disposition against juvenile offenders focusing on the appropriateness of discriminative treatment that reflects characteristics of juveniles, enforcement of community service order as a way to substitute fine, introduction of probation system for less than 5 million won of monetary penalty.

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

박찬걸(Park, Chan Geol) 한국형사정책학회 2018 형사정책 Vol.30 No.2

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

최근 제정된 스토킹처벌법의 개정에 대한 소고

박찬걸(Park, Chan-Geol) 한국형사법학회 2021 형사법연구 Vol.33 No.3

2021. 4. 20. 법률 제18083호로 제정된 「스토킹범죄의 처벌 등에 관한 법률」이 2021. 10. 21. 시행될 예정인데, 이는 1999. 5. 24. 제15대 국회에서 「스토킹처벌에 관한 특례법안」이 처음으로 상정된 후 약 22년만에 이루어진 입법적 결실이다. 이와 같이 스토킹범죄를 형법상의 범죄군으로 포섭하지 않고 특별법을 통하여 별도로 규정하고 있는 제정법의 태도는 타당하다. 왜냐하면 제정법의 체계를 면밀히 살펴보면, 스토킹범죄의 처벌 및 처벌절차에 관한 특례 보다는 범죄의 성립 이전 단계에서 보호와 예방을 강조하기 위하여 스토킹(범죄) 피해자에 대한 보호절차에 주안점을 두고 있기 때문이다. 특히 스토킹‘행위’와 스토킹‘범죄’를 엄격하게 구분하여 범죄에 이르기 전(前) 단계에 국가기관이 응급조치, 긴급응급조치, 잠정조치 등을 통하여 적극적으로 개입할 수 있는 명확한 법적 근거를 마련하였다는 점에서 기존 법령상의 대처와 다른 획기적인 진일보라고 평가할 만하다. 하지만 스토킹처벌법의 법률 명칭 이외에도 제정법의 내용 가운데 개선해야 할 사항이 다수 존재한다. 그 동안 가장 진부하게 논의되어 왔던 스토킹의 개념 및 유형에 대한 제정법의 규정마저도 법 시행 후 실제 적용과정을 통하여 다수의 사례가 집적되면서 사후적인 개정의 대상이 될 것은 자명한 일이다. 모든 법이 그러하듯이 제정법이라는 것은 장래에 있어서 과거의 오래된 법으로 변모하기 마련이므로, 비록 제정되어 그 시행이 되기 전의 법률이라고 할지라도 항상 개정을 염두에 두고 비판적인 시각에서 법조문을 분석해야 하는 작업을 한시도 게을리 해서는 안 된다. 이와 같은 작금의 상황에서 본고에서는 스토킹처벌법이 보다 피해자 보호에 실질적으로 기여할 수 있는 발전적인 법률로 변모되어야 한다는 기본적인 시각에 입각하여 스토킹행위 및 스토킹범죄에 대한 명확한 구분의 의의, 피해자 The 「Act on Punishment of Stalking Crime etc.」that has been enacted on April 20, 2021 as the Act No. 18083 will take effect from October 21, 2021, which is a legislative outcome that is realized after 22 years after the「Special Law on Punishment of Stalking」was brought in the 15th National Assembly on May 24, 1999. As such, the attitude of current law that regulates stalking crime separately through a special law not including as a group of crimes on the criminal law is considered reasonable. It is because that on closer scrutiny, the system of current law is placing emphasis on the procedure of protection of the victims of stalking(crime) rather than on the special case of the punishment of stalking crime and procedure of punishment to emphasize protection and prevention prior to the establishment of a crime. Especially, it can be evaluated as innovative step forward which is different from the measures on the existing laws in the way that it prepared a clear legal basis that enables national agencies to intervene in the previous step of crime by distinguishing stalking‘act’and stalking‘crime’strictly. However, a large part of current law needs to be improved in addition to the title of the act on punishment of stalking. It is clear that even the regulation of current law about concept and type of stalking that has been discussed the most conventionally will become an object of ex post revision as numerous cases are stacked through the actual process of application after enforcement of the act. As with all laws, the current law is subject to change as the archaic law in the future, so we should not be negligent of the analysis on the provisions from a critical perspective keeping revision in mind at all times even if it was enacted but in force yet. In this situation, this manuscript, based on the basic perspective that the act on punishment of stalking should change to a developmental law capable of making an actual contribution to the protection of victims, intends to finish discussion after examining the procedure of protection of the victims of stalking crime focusing on the preparation of controls over different opinions on the claim for provisional measures such as establishment of a written warning and reinforcement of the measures for personal after examination of the concept and type of stalking act putting emphasis on the significance of a clear distinction between stalking act and stalking crime, an issue related to the establishment of the scope of victims, theory of analysis on the creation of anxiety or fear to the other person (victim) against the will of the person (victim) without a valid reason, establishment of the act of stalking using a third party without intention for stalking’as a subtype of stalking.

소년법상 우범소년에 대한 합리적인 개입 방안

박찬걸(Park Chan-Geol) 한국형사법학회 2021 형사법연구 Vol.33 No.4

우범소년은 성인에 행할 경우 별 다른 문제가 되지 않는 지위비행을 행한 소년을 의미하는데, 최근 들어 우범소년 규정 폐지의 목소리가 한층 커지고 있는 실정에 있다. 예를 들면 2021. 7. 12. 국가인권위원회는 법무부장관에게 소년법의 우범소년 관련 규정을 삭제하고, 이를 소년복지적 차원의 지원방안 및 보호대책으로 대체할 것을 권고하였고, 2020. 12. 30. 법무부 내 소년보호혁신위원회 역시 우범소년 규정 폐지를 권고를 한 바 있다. 또한 2019. 10. 유엔 아동권리위원회는 ‘일반논평 24호: 아동사법제도에서 아동의 권리’를 통하여 학교결석, 가출, 구걸 또는 무단 침입 등 빈곤, 노숙 또는 가정폭력의 결과인 경우가 적지 않은 범행들을 비범죄화해야 한다고 보면서, 지위비행으로도 알려진 이러한 행위는 성인에 있어서는 범죄행위로 간주되지 않는 것으로 당사국에서 지위비행에 관한 조항을 삭제할 것으로 촉구한 바 있다. 이와 같은 최근의 추세를 반영하여 2021. 1. 15.자 이규민의원 대표발의 소년법 일부개정법률안에 의하면, 소년 보호사건의 대상에서 우범소년 관련규정인 제4조제1항제3호를 삭제함으로써 이들에 대한 사회적 낙인을 예방하고 인권을 보호하고자 하고 있다. 소년비행에 대한 초기 개입의 중요성이 날로 부각되고 있는 현재의 상황에서 본고에서는 우선 우범소년 규정의 변천과정을 살펴본 다음 우범사유 및 우범성의 내용이 과연 우려할 수준에 이르는 정도의 불명확성이 인정되는지 여부에 대한 검토를 시도한다. 다음으로 기존에 논의되고 있는 우범소년 규정 존폐론 가운데 폐지론의 입장을 설명한 다음 존치론의 입장에서 이를 반박해 보도록 한다. 이상의 검토를 토대로 현행 우범소년 규정의 존치를 전제로 하여 절차적인 과정에서 우범소년에 대한 합리적인 개선방안을 제시하며 논의를 마무리 하기로 한다. Status offenders mean juveniles who committed status offenses that are not much of a problem among adults, and recently, there has been a growing voice to abolish the regulations on the status offenders. On July 12, 2021, for example, National Human Rights Commission of Korea recommended the Minister of Justice to remove regulations regarding status offenders from the Juvenile Act and replace such regulations with support plan and protective measures in terms of welfare for juvenile, and on December 30, 2020, Committee on Juvenile Protection Innovation, a Ministry of Justice-affiliated organization also recommended to abolish regulations on the status offenders. In October 2019, The UN Committee on the Rights of the Child stated through the ‘Item 24 of the General Commentary: Rights of Children in the Judicial System for Children’that it is necessary to decriminalize crimes such as absence from school, runaway, begging or trespass that are committed often as a result of poverty, homeless or family violence, urging countries concerned to remove provisions related to status offense saying that such an act which is known as status offense is not considered a criminal act even in case it is committed by an adult. To reflect the trend, partial amendments of the Juvenile Act which was proposed as of January 15, 2021 by Lee Gyu-min, a member of the National Assembly aim to prevent social stigma and protect human rights of juvenile by removing Item 3, Clause 1 of the Article 4, a provision related to status offenders from the objects of juvenile protection case. With increase in the importance of early intervention in juvenile delinquency, this manuscript examines the change process of the regulations on status offenders first, and attempts to examine whether or not uncertainty is admitted to reach a worrying degree in regards to the reason for and details of a crime (Ⅱ). Next, this manuscript explains the position of abolitionism out of existing dispute over abolishment of regulations on the status offenders, and refutes from the position of retention (Ⅲ). Based on the examination, this manuscript intends to suggest a rational intervention plan for status offenders in the process premising retention of current regulations on status offenders (Ⅳ) and conclude discussion (Ⅴ).

경찰권과 검찰권의 조정을 통한 ‘국가수사청’ 설치에 대한 시론

박찬걸 ( Park Chan-geol ) 한국비교형사법학회 2018 비교형사법연구 Vol.20 No.1

The key point of National Investigation Administration is to operate investigation and prosecution independently, establish a professional and independent national investigation administration having investigation authority, and to include prosecutor and judicial police in the same agency where prosecutor commands investigation and judicial police takes charge of investigation. In other words, prosecutor and judicial police perform their duties together with each other in an investigation agency where prosecutor commands investigation and judicial police takes charge of investigation. This cannot be said to add an investigation administration, setting aside from the current investigation agency, but to integrate the two investigation agencies divided into prosecution and judicial police with a single one by separating it from prosecutor's office or police administration. Such as this, National Investigation Agency where investigation prosecutor and judicial police worked together to have entire investigation authority was newly built, while prosecutor's office performs prosecution powers and police administration solely performs administrative police actions such as crime prevention and maintenance of order. National Investigation Administration has its objective to maximize efficiency of national crime judicial action by mediating the authorities of police, prosecution and organization in a rational manner and separating what needs to be separated and integrating what needs to be integrated. This is one of the starkest characteristics that is different from the existing special investigation organization. The research study is to analyze the problems with excessive authority and the position as quasi-judicial agency in relation to fairness of prosecution judgement, and the problems with prosecution investigation and indictment caused by double investigation by the police and prosecutor's office mainly focusing on admissibility of evidence of protocol of examination of a suspect, and the ones with trust of people about police investigation, dual command chain, and police investigation mainly focusing on the side effect caused by sending overall cases to prosecutor's office. Subsequently, the study is to place the emphasis on the need to reinforce trial-central system, disperse power by separating investigation from prosecution, and to introduce integrated investigation organization based on establishing equal co-operative relations between prosecution and police to finish the discussion by pursuing a concrete method for separating administrative police from judicial police; investigation examination from trial examination and abolishing prosecution investigation officer system and the interrogation procedure of suspect at the police level.

소년범에 대한 형벌 부과의 문제점 및 개선방안

박찬걸 ( Park Chan-geol ) 한국비교형사법학회 2018 비교형사법연구 Vol.20 No.3

In case of the juveniles, the possibility of the recovery from the criminal acts and re-socialization is higher than that of adults, the criminal judicial system shall take into account them and the system which is imposed on the adult shall not be applied to the juveniles as it is. It means that the protectional disposition should be first applied to the juveniles reflecting the principle of parens patriae and the education ideology as they need the disciplinary system different from that for adults. The general judicial system shall be applied to the juveniles in exceptional cases only, in which case, the criminal disposition shall be imposed in a softer method. Reflecting these characteristics, the Juvenile Act specifies the special cases for the juvenile crime considering their individualistic and environmental characteristics such as prohibition of death penalty and life sentence, sentencing of relative indeterminate sentence, prohibition of detention in labor house, possible reduction of the sentencing and reduced requirements for parole, etc for the juvenile criminal unde the age of 18. Here, there are the needs for closely checking if the special provisions in the criminal dispositions specified in the Juvenile Act, which were designed in compliance with the characteristics of juvenile criminals can be properly applicable under current situation or if not, what kinds of provisions should be improved. It is because although the Juvenile Act which was established in 1958 has been improved in a more advanced way through several revisions, there are still the provisions which are not proper or does not reflect the characteristics of juvenile criminal from the viewpoint of the general juvenile criminal laws. Therefore, this study would segment the punishment system against the juvenile criminals into amercement system, imprisonment system and death penalty system, check each of them and analyze the problems of each of them before reasonably suggesting the method for improvements.

의료소년원의 운영현황과 발전방안

박찬걸(Park Chan-Geol) 한국형사정책학회 2017 형사정책 Vol.29 No.3

The main purpose of properly rendering individual treatment to antisocial juveniles might be to strengthen protection of human rights for protected juveniles and enhance the effectiveness of corrective education. For this, the revised Juvenile Act in 2007 added juvenile medical facilities besides hospitals and sanitariums as the institutions for the Subparagraph 7 Disposition and revised Protected Juvenile Act in 2013 made clear the legal grounds for treatment of juveniles requiring medical, rehabilitation education. These came to provide both legality and justification for practices which used to have either ambiguous or no grounds in the existing law. But as a matter of fact, there are still so many legal or institutional shortcomings in our society s path towards complete sorting out problems emerged while operating our country s medical youth training centers. Having that issue in mind, this article firstly looked at the current state of regulations and organizations related with medical youth training centers. And then the study moved to examine the current state of operation focused on foster care period, the state of foster completion, the state of transfer of juveniles requiring medical/rehabilitation treatment, the state by the handicap type, the state by age and gender. The study then examined the current state of actual education, focused on education of newcomers, classification of the target of education. process and organization of concentrated education. Following the solid understanding of the current operational state of medical youth training centers as such, the study sought to find futuristic methods for their development. For these, the study suggested several solutions by grouping; deletion of regulations related with treatment of hospitals and sanitariums , sorting out overcrowded accommodation, necessity for installing independent medical youth training centers, separate accommodation by the target and individual treatment. And the study concluded the discussion.

부동산 이중매매가 과연 형사처벌의 대상인가?

박찬걸(Park Chan-Geol) 한국형사정책학회 2018 형사정책 Vol.30 No.1

Considering the basic premise that in case there are civil disputes occurring, it is right to resolve, in principle, them, in accordance with civil codes, but that if only such a method is judged invalid, criminal codes shall be applied exceptionally, protective steps for buyers sales and purchase prices are to be taken by improving such a civil case system. It is possible enough to prevent antisocial behaviors of real estate double contract, in advance, by revising the practice of real estate trade. Nevertheless, using the nation s penal power through the means of prohibition and oppression cannot be considered a valid policy. Especially in the case of statute nation which cannot accept the case law, taking the established precedents as an unchanged truth is extremely dangerous. In the statute nation like South Korea, it is indisputable that case law does not have binding force as the laws and regulations do. Taking it into account, the supreme court must play a role to resolutely revise a case law and improve its contradiction if such a case law is found to have no logical consistence or involve few penalties owing to the complemented institutional or policy system, although such a case law has long been established. It needs to be noted that revising a case law can mean complementing such an institutional or policy system that was not established properly at that time the case law began to be amended. The criminal code association criticizes too much for the logical contradiction of the criteria to be given criminal punishment. Even the judicial body has the greater opinions in favor of such a situation. Given such a stern reality, the judicial body should never delay making a final judgment, considering whether such opinions must be limited by legally persuasive power, and possible social impacts incurred when such opinions are to be accepted. This is a matter to be overcome throughout the whole process the legislative body drafted the related laws and ordinances and the administrative body executes them.

제20대 국회에 제출된 소년법 개정법률안에 대한 검토 : 제재강화에 대한 비판을 중심으로

박찬걸(Park Chan-Geol) 한국형사정책학회 2020 형사정책 Vol.32 No.2

1958. 7. 24. 제정된 소년법은 그 동안 총 11차례의 개정을 거치면서 현재에 이르고 있다. 제20대 국회에서는 총 42건의 소년법 일부개정법률안이 제출되어 이 가운데 단 1건만이 국회를 통과하였는데, 이 마저도 제67조에 대한 헌법재판소의 헌법불합치결정의 취지를 반영한 것에 불과하고, 나머지 41건의 법안은 모두 임기만료로 자동폐기되어 버렸다. 현행 소년법 정책의 문제점을 파악하고 개선방안을 모색하는 논의의 장은 입법의 영역으로 귀결된다고 해도 과언이 아니라고 할 수 있는데, 그중에서도 최근 국회에 상정되고 있는 소년법 일부개정법률안의 제안배경, 내용, 기존 법령과의 차이, 다른 법령과의 관계 등을 파악하는 것은 우리나라 소년법 정책의현 주소와 미래를 음미해 보는 가장 좋은 방법이라고 생각한다. 이러한 측면에서 제21대 국회의 임기가 이제 막 시작된 상황에서 제20대 국회에 계류하였던 총 42건의소년법 일부개정법률안을 전수조사하여 구체적으로 재음미하는 것은 비교적 최근의 소년법 정책에 대한 큰 흐름을 이해하는데 있어 상당한 도움이 될 것으로 기대된다. 이에 본고에서는 특정 범죄에 대한 소년법의 적용 배제, 촉법소년 상한연령의 하향 조정, 범죄소년 상한연령의 하향 조정, 사형 및 무기형 특례규정의 정비, 부정기형의 정비, 가석방 특례규정의 정비, 자격제한 특례규정의 정비 등을 중심으로 소년범에 대한 형사처벌의 강화와 관련된 개정안의 내용을 살펴 본 다음(Ⅱ), 구속영장제한적 발부 규정 삭제, 촉법소년에 대한 임시위탁영장 발부, 형사법원으로의 재이송사유 추가, 심리기일에 보호자의 필수적 소환 등을 중심으로 소년사법 처리절차의강화 관련 내용을 분석하며(Ⅲ), 이후 소년원 송치기간의 연장, 사회봉사명령 부과연령의 하향조정, 수강명령 부과연령의 하향조정, 보호처분 병합의 추가, 우범소년의 범위 확대 등을 중심으로 한 보호처분의 강화와 관련된 검토(Ⅳ)를 차례대로 진행하기로 한다. Enacted on July 24, 1958, the Juvenile Act have went through 11 times of revision so far. In the 20th National Assembly, total 42 cases of partially-revised legislative bill of the Juvenile Act were submitted and only 1 of the cases passed through Parliament, and the case was merely a reflection of the intent of the decision of constitutional nonconformity of the Constitutional Court for the Article 67, and the rest 41 bills were all discarded automatically due to the expiration. It is not too much to say that a forum for understanding problems of current juvenile act and seeking an improvement lead toward the area of legislation, and among others, understanding of the background, contents of proposing a partially-revised legislative bill of the Juvenile Act that has recently been presented to the National Assembly, difference with existing laws and relation to the other laws is considered the best way to examine the present state and the future of our Juvenile Act. In this respect, reexamination of 42 cases of partially-revised legislative bill of the Juvenile Act which were pending in the 20th National Assembly concretely by carrying out a complete enumeration survey in the situation when the term of the 21st National Assembly has just begun is expected to be of a great help to understanding of the great flow of the relatively recent policy on the juvenile act. Thus, this thesis aims to examine contents of revised bill related to intensification of criminal penalty against juvenile delinquents focusing on the exclusion of application of the Juvenile Act to specific crimes, lowering of the age of juvenile offenders, improvement of exceptional cases for death penalty, life imprisonment, indeterminate sentence, conditional release, restrictions on qualification etc. and will make an analysis on the details related to the enhancement of juvenile jurisprudence procedure focusing on the deletion of limited issuance of arrest warrant, consigned issuance of temporary warrant against law-intruding juveniles, add of the reason for retransfer to the criminal court, shortening of the time of execution of the general prisons, and will continue examination related to enhancement of protective disposition giving priority to the extension of the term of sending to juvenile reformatory, downward adjustment of the age for imposition of social service order, imposition of order to attend a lecture, addition of protective disposition for concurrent crimes, expansion of the range of pre-delinquents etc.

고위공직자범죄수사처의 독립성 및 정치적 중립성 확보방안에 대한 검토

박찬걸(Park Chan-Geol) 한국형사정책학회 2020 형사정책 Vol.32 No.1

The ｢Act on Establishment and Operation of High-Ranking Officials’ Corruption Investigation Agency｣ will take effect from July 15, 2020. In the present situation of 2020, there is a huge difference in the way that the main purpose of establishment of a High-Ranking Officials’ Corruption Investigation Agency was to fight against illegalities and corruption of high-ranking officials in the past, but it is now pushed ahead as part of strong reform of the prosecutors. Despite a number of plans for reform of the prosecutors had been suggested and actually enforced so far, reform of the prosecutors had not even come to close to accomplishment, and the necessity has come to the fore even more. Especially, the independent special prosecutor system which was adopted ambitiously repeated failure for various reasons such as temporary function, limitations on the subject etc., which led to the result of establishing an independent investigative agency capable of investigating a wide range of crimes by high-ranking officials on a permanent basis. For the reasons, conflict of pros and cons about establishment of High-Ranking Officials’ Corruption Investigation Agency will be considered wasteful dispute in the present situation, so it is clear that the discussion will be focused on reasonable operating plan of the agency in the future. Then, what does ‘reasonable operating plan’ for investigative agency here stand for concretely? And is it possible to bring in the ideology of constituting human resources and materials of investigative agency and penetrating the overall system for rational operation of investigative agency? As an answer to the question, this manuscript intends to find essential premise for the operation of investigative agency in the independence of duty and political neutrality. From now on, this manuscript will make a judgment how much the present investigative agency accord with the purpose of its establishment and suggest a detailed improvement plan for the process of future operation to make it more suitable to its objectives by dividing details of the Act on Establishment and Operation of High-Ranking Officials’ Corruption Investigation Agency that passed through Parliament largely into organization and duty of the agency from the two perspectives of independence of duty and political neutrality.