소년사법의 실천방안

박호현(Park Ho Hyun) 중앙대학교 법학연구원 2016 法學論文集 Vol.40 No.1

In 2007, the Juvenile Act was revised. The protective disposition No.8 was enacted to diversity the juvenile protective disposition in accordance. The purpose of protective disposition No.8 was the youth at initial stage to improve their personal characters as soon as possible by less then one month education program and to prevent them from doing misdemeanor again. The study suggests reforming way of the protective disposition No.8 based on actual condition of operation of the protective disposition No.8.: The way can divide legal aspect and operational aspect. Legal aspect can divide three aspects. Firstly, Juvenile Protection and Treatment Act should combine Special Short-term Treatment of Protected Juvenile and Guidance on Education. Secondly, the protective disposition No.8 and the protective disposition No.5’s merger should make a new rule of Juvenile Act. Thirdly, the protective disposition No.8 facilities should install by regional groups. Operational aspect can divide three aspects. Firstly, juvenile’s education of law should strengthen. Secondly, institutions should take a inter-organization cooperation. Thirdly, institutions should make cooperation organization’s strategy of public relation.

보안처분제도에 관한 논의 -보호수용법률안을 통한 보안처분의 활성화방안을 중심으로-

박호현 ( Ho Hyun Park ) 홍익대학교 법학연구소 2016 홍익법학 Vol.17 No.2

The preventive care and custody system of the Republic of Korea is implemented for the purpose of care and remedying those whose mental and physical conditions are complete, the weakminded people, those who are addicted to drugs and alcohols and those with mental disability by having them put in care and custody facilities for a certain period of time. This system takes into consideration of the fact that in the case of those whose mental and physical conditions are incomplete on whom a punishment is not inflicted because they lack proper capabilities to fulfill their responsibilities even though they are likely to do harm to their society and in the case of the weakminded people whose sentence is reduced to less severe punishment. The government enacted The Social Protection Act in 1980 and since then it has implemented the care and custody system as part of custody punishment following the enactment of the Act. The aim of the Act is to prevent criminals from committing a second crime in the future. To speak more specifically, the Act was legislated to get rid of the limitations and restrictions that the nation`s criminal punishment procedures had before the enactment of the Act, and by doing so, a legal punishment is inflicted upon a criminal and a criminal is put in facilities for care and remedy of criminals in commensurate with the properties of his or her crimes just on the consideration of a criminal`s potential committing illegal acts instead of considering a criminal`s past crimes and legal fulfillment of responsibilities associated with his or her punishment. But the System of care and custody is no different from the punishment. A controversy arose over double punishment of the System of care and custody. So the System of care and custody is abolished. For this reason, Medical Treatment and Custody Act is representative of the security-measure. But recently, the Legal bills is proposed. it is a Sicherungsverwahrung. Sicherungsverwahrung is similar to the System of care and custody. So this paper will treat Sicherungsverwahrung. Through the Medical Treatment, Custody recipient`s Medical Treatment and Custody cesser, recipients will return to the society. Since recipient`s return, recipient will be subjected to the probation. But despite a probation officer`s effort, recipient can`t lead a life along with the common citizen. So this paper will show inter-organization cooperation. For example, Police, Institute of Forensic Psychiatry Ministry of Justice, Correctional facility and so on.

치료감호제도에 관한 논의 - 정신성적장애자에 대한 치료감호법적 개선을 중심으로 -

박호현 ( Park Ho-hyun ) 제주대학교 법과정책연구원 2016 국제법무 Vol.8 No.2

The object of therapeutic custody is medical treatment and rehabilitation to the society toward mentally defective person or feeble-minded person who don`t feel their accountability and cannot charge criminal judgement in spite of social risk, addicts of alcohol, drugs or etc. and psychosexual disorder. Social Protection Act was legislated in 1980 and therapeutic custody came into force as one of security measures to prevent second offenders by improving through treating medically and depriving their freedom based on future danger, not one`s act or responsibility in the past to solve the limitation of criminal punishment of South Korea. However there is a issue that their treatment is under hardship because of separate confinement for not short period in correctional facilities or national mental hospital by absence of facilities to execute therapeutic custody. Therefore national military hospital was built as belonging to the Department of Justice in Gongju-si, Chungcheongnam-do, Korea by necessity of an independent facility to treat well during therapeutic custody. This study is heading toward the legal problems of psychosexual disorder which are under legal inclusion in 2008 after abolition of Social Protection Act which was legislated in 1980, and the solution. The improvement plan under the rule is harmony of improvement and security through medical treatment according to Medical Treatment and Custody Act as ideal type. To make the ideal type come true, the definition and second-offender risk possibility of psychosexual disorder should be concrete. In order to realize the principle of legality and law-governed state ideology, concrete definition should be confirmed based on psychiatry as possible as it can. Additionally custody of psychosexual disorder can get proper when they need medical treatment. Thus they have to get judged by separating the offender who needs medical treatment from the offender who needs custody. And alternative ways are needed when medical treatment is necessary during custody. Psychosexual disorders who are included in the subject of therapeutic custody in 2008 as law because of increasing sex crime should be not only under national military hospital, but also counterplan are demanded at the national level. It is the reason why social dealing for preventing second offenders and treating medically should be set for the offenders who can be citizens like us after getting released from the facilities.

국민의 형사재판 참여에 관한 법률 개정논의에 대한 고찰

박호현(Park, Ho Hyun),김종호(Kim, Jong Ho),명도현(Myung, Do Hyun) 동국대학교 사회과학연구원 2015 사회과학연구 Vol.22 No.4

사법시스템은 시민참여의 수단으로 국민참여재판을 포함시켰고, 이러한 절차는 시민들의 사법절차에 대한 신뢰성과 사법의 민주적 정당성을 고취시키기 위해 시작되었다. 하지만 국민참여재판의 이러한 긍정적 내용과는 다르게 배심원 평결의 문제, 배심원 선정, 경제적 부담 및 시간적 부담, 평결에 대한 기속력 문제 등 여러 가지 많은 문제점들이 나타나고 있다. 그러나 이러한 문제점에도 불구하고 국민참여재판은 다양한 시민들의 의견수렴을 통해 사법절차의 민주성과 시민들의 신뢰를 증진시켰다고 할 수 있다. 또한 경제적 부담 및 시간적 부담의 문제는 앞으로 진행될 다양한 국민참여재판의 결과분석을 통해 만회해야할 문제들이다. 그러나 전관예우 및 소위 유전무죄․무전유죄는 국민참여재판이 가장 긍정적인 평가를 받는 부분이며, 평결의 신뢰성 문제와 배심원 선정에 대한 문제는 추첨이라는 방식을 통해 해결해 나갈 수 있는 사항들이다. 그러나 국민참여재판에 있어 시급히 해결해 나가야할 문제점은 접수율의 감소와 철회율 및 배제율의 증가에 있다고 할 수 있다. 그리고 높은 항소율 및 평결이 가진 효력적 문제는 국민참여재판의 효과적 측면에서 부정적인 평가를 받는 사항이기도 하다. 이러한 문제점들에 대한 개선방안으로서 첫째, 시민이 참여하는 재판절차의 배제율을 낮추기 위해 일반절차로의 회부사유를 명확하게 해야 한다. 둘째, 배심원의 평결에 기속력을 부여해야 한다. 셋째, 지방법원에서 제1심의 재판이 국민참여재판으로 진행된 경우 항소심은 되도록 제한하는 것이 요구된다. 넷째, 시민들이 사법절차에 참여하는 것은 하나의 권리이자 의무라는 것을 인식시키고 이를 위한 다양한 홍보가 필요하다. 또한 국민참여재판이 피고인들 자신에게 불리할 것이라는 인식을 변화시킬 필요성이 있다. The Civil Participation in Criminal Jury Trial that people firstly participate in criminal trial in history of Korea starts With expectation for securing the finding of substantial truth and for strengthening of the democratic legitimacy and the confidence of general people about criminal justice. But, there are concerns as the credibility of jury verdict, the unfair selection of juror, the increase of expense, the non-binding nature of the verdicts. We should watch the development of the Civil Participation in Criminal Jury Trial about the finding of substantial truth, the strengthening of the democratic legitimacy and the confidence of general people about criminal justice and the increase of expense. But, it is positive that ‘the Privileges of Former Post’ and ‘All mighty is the dollar’ do not exist in the Civil Participation in Criminal Jury Trial. Concerns for the credibility of juror verdict and the unfair selection of juror proved to be unfounded. But the biggest problems are low-end receipt ratio and a high withdrawal and exclusion ratio. Due to high appeal ratio and advice effect of the jury verdict, the effectiveness of the Civil Participation in Criminal Jury Trial is being intensively criticized. The passive participation is discussed with directly-opposed judging the attendance rate of juror. To improve these problems, first of all, we should expand to White-Collar Crime that become the cause of the distrust of jurisdiction and White-Collar Crime be brought to compulsory Civil Participation in Criminal Jury Trial. Secondly, to lower exclusion rate of the Civil Participation in Criminal Jury Trial, the causes of exclusion be materialized. Thirdly, the jury verdict be given binding effect in the end. Fourthly, the Appeal Court be limited. Fifthly, the government should start a nationwide campaign to foster the public participation in the jury trials. Lastly, the juror be considered with ‘Easy and Fast Trial’.

국민참여재판 배심원들의 퍼블리시티 문제와 해결방안

박호현 ( Park Ho-hyun ) 제주대학교 법과정책연구원 2017 국제법무 Vol.9 No.1

The Civil Participation in Criminal Jury Trial that people firstly participate in criminal trial in history of Korea starts With expectation for securing the finding of substantial truth and for strengthening of the democratic legitimacy and the confidence of general people about criminal justice. But, there are concerns as the credibility of jury verdict, the unfair selection of juror, the increase of expense, the non-binding nature of the verdicts. We should watch the development of the Civil Participation in Criminal Jury Trial about the finding of substantial truth, the strengthening of the democratic legitimacy and the confidence of general people about criminal justice and the increase of expense. But, it is positive that `the Privileges of Former Post` and `All mighty is the dollar` do not exist in the Civil Participation in Criminal Jury Trial. Concerns for the credibility of juror verdict and the unfair selection of juror proved to be unfounded. But the biggest problems are low-end receipt ratio and a high withdrawal and exclusion ratio. Due to high appeal ratio and advice effect of the jury verdict, the effectiveness of the Civil Participation in Criminal Jury Trial is being intensively criticized. The passive participation is discussed with directly-opposed judging the attendance rate of juror. But the Civil Participation in Criminal Jury Trial`s the most important is pretrial publicity. Through this, juror can have a prejudice. But trial consists of witness attendance and submission of evidence. These will make juror or judge`s conviction. So publicity is the most important matter. For this reason, this paper will show citizen participation`s necessity and publicity`s problems. Eventually, this paper will show publicity`s problems and publicity`s solution plan in the Civil Participation in Criminal Jury Trial.

공익신고제도 개선방안에 관한 연구 - 공익신고자 보호법 개정(안)을 중심으로 -

박호현 ( Park Ho-hyun ),김명대 ( Kim Myeong-dae ) 제주대학교 법과정책연구원 2018 국제법무 Vol.10 No.1

The public service reporting system is designed to ensure the transparency of organizations by internal members to recognize internal corrupt practices and inform them to the outside. However, because public interest breaches within organizations are unknown due to be acted unrecognizably and covertly, they can be informed to the outside only by internal members who are correctly aware of the organization’s inner circumstances. Nonetheless, members of the organization are hesitant to report because of the disadvantages they may receive after public service reporting. In other to solve these issues, the Whistleblowers Protection Act. was enacted in 2011. The purpose of the act was to protect whistleblowers who report the activities violating public health and safety, the various circumstances surrounding the people, and the consumer interests of unfair transactions. However, there are still problems within the Whistleblower Protection Act. such as the subject and scope of public service reporting, the practical protection of whistleblowers and so on. Therefore, this study is intended to provide problems related in coverage on the public service reporting system, the scope of authority of the agencies involved in it, anonymity of whistleblowers, compensation and subsidy for whistleblowers and etc,. furthermore, will develop arguments for legislative alternatives. Public service reporting system has roles and functions preciously to prevent violations of the public interest, the organization's transparency, and the interest of its members. In order to perform those roles and functions correctly, various alternatives should be provided to achieve the goals set forth in the established legislation. It will eventually lead to the activation of the public service reporting system.

공간 질의 최적화에서 여과 및 정제 단계의 조기 분리

박호현(Ho-Hyun Park),이찬근(Chan-Gun Lee),이용주(Yong-Ju Lee),정진완(Chin-Wan Chung) 한국정보과학회 1999 정보과학회논문지(B) Vol.26 No.3

공간 데이타베이스는 일반 관계형 데이타베이스나 객체지향 데이타베이스에 비해 다음과 같은 특징을 가진다. 첫째, 공간 데이타베이스에서의 질의는 공간 질의와 비공간 질의가 섞여서 들어 온다. 둘째, 공간 질의는 비공간 질의에 비해 데이타의 복잡성과 방대함으로 인해 주로 2 단계 (여과 단계 및 정제 단계) 로 나누어 처리되었다. 셋째, 공간 객체들은 대부분 공간 색인을 가지고 있다. 본 논문에서는 이러한 공간 데이타베이스의 특성을 잘 반영하는 질의 최적화 기법을 제안한다. 첫번째 방법으로 질의 수행단계 이전의 최적화 단계에서부터 여과 및 정제를 분리하여 생각하는 것이다. 두번째 방법으로는 복잡한 질의에 대해서 각각의 공간 연산을 여과/정제 단계로 분리한 후 여러 정제 단계 연산들을 합쳐 한꺼번에 처리 할 수 있고 여러 여과 단계 연산들도 마찬 가지로 합쳐질 수 있다. 본 논문에서는 또한 여과/정제를 질의 최적화 단계에서 분리한 여과/정제 조기 분리 (ESFAR) 최적화 기법에 대한 규칙 기반 질의 최적화 기법을 제안한다. Spatial databases have the following characteristics compared with traditional relational databases or object-oriented databases. First, a query in the spatial databases is a mixed query which contains both spatial sub-queries and non-spatial sub-queries. Second, due to the high complexity and large volume of spatial data, the spatial query has been processed mostly in two steps (filter step and refinement step). Third, most spatial databases have spatial indexes for spatial data types. This paper presents query optimization strategies which reflect the above characteristics of spatial databases well. The first strategy is to separate filtering from refinement not in the query execution phase but in the query optimization phase. As the second strategy, several refinement operations can be combined in processing a complex query, and several filter operations can also be combined. We call this optimization technique the Early Separated Filter And Refinement (ESFAR). This paper also presents a rule-based optimization technique for ESFAR.

아동학대범죄의 처벌 등에 관한 특례법 개정논의에 대한 고찰 - 정신장애자의 처우를 중심으로 -

박호현(Park, Ho Hyun),김명대(Kim, Myeong Dae) 한국피해자학회 2017 被害者學硏究 Vol.25 No.2

The criminal law gets criminal sanctions as punishments about crime occurrence. These sanctions are two kinds of punishments by past acts and security disposal to criminal potentiality. Child abuse crimes are processed by those punishments. However the criminal law has exemption or reduction regulations to mental and physical disorder person through the law Article 10 Clause 1 and Clause 2. Nevertheless, child abuse has it bad effective that the children grow to sound citizens because of mental and physical immaturity of them. Therefore this study will find the way to punish not to apply the criminal law Article 10 Clause 1 and Clause 2 if child abuse occurs by criminals taken alcohol and drug on focus of the amendment of Special Act on Punishment of Child Abuse Crime. It is important to punish child abuse criminals, but it is also necessary to be prevented by treatment because of its recidivism. Although the criminals get back to society after punishment or security disposal, it is not certain that recidivism and repetitive offences are totally eliminated. Therefore diverse ways should be executed such as community service, enrollment order, secondary security disposal and so on.

소년법 개정논의에 대한 고찰

박호현(Park, Ho-Hyun),김종호(Kim, Jong-Ho) 동아대학교 법학연구소 2018 東亞法學 Vol.- No.78

소년법 제정의 목적은 반사회성이 있는 소년의 환경조정과 품행 교정을 위한 보호처분 등의 필요한 조치를 하고, 형사처분에 관한 특별조치를 함으로써 소년이 건전하게 성장하도록 돕는 것이다. 즉, 보호이념을 바탕으로 교화와 개선을 통한 사회복귀를 목적으로 한다. 하지만 2017년 부산여중생 폭행사건을 시작으로 천안여중생 폭행사건, 아산여중생 폭행사건, 강릉여고생 폭행사건 등 다양한 소년범죄들이 발생하였고, 이러한 문제들은 심각한 사회문제로 대두되었다. 그러나 이러한 소년범죄들은 성인범죄와 다르지 않은 잔인성과 흉포성을 내포하고 있어 소년법상의 소년의 연령을 낮추는 것이 사회적 화두가 되어 소년범죄의 엄벌화를 요구하고 있다. 소년법은 소년보호주의를 통해 국친사상을 중요한 이념으로 인식한다. 그러므로 소년들이 성인들에 비해 육체적, 정신적으로 성숙하지 못한 상태라는 것을 인식하고 소년들을 건전한 시민들로 성장시키기 위해서는 국가가 처벌 보다는 교육과 복지를 통한 성장이 이루어질 수 있도록 노력해야 한다. 또한 소년범죄가 발생할 때마다 소년의 연령저하 및 엄벌화의 요구를 부추기는 여론형성의 문제도 해결해야할 문제이다. 따라서 본 논문은 소년사법제도의 엄벌화로 인해 발생할 수 있는 문제들을 2017년 발의된 소년법 개정 법률안들을 통해 살피고, 발견된 문제들을 바탕으로 소년법 개정을 위한 방향으로 삼으려고 한다. The purpose of the Juvenile Act. is to work for necessary measures like protective custody in order for behavior correction and environmental adjustment of juvenile who are antisocial and to help them grow soundly by giving special measures as criminal punishment. Indeed, that aims at their comeback to society through education and improvement based on protective ideology. However, various juvenile crimes happened such as assault cases of Cheonan middle school girls, Asan middle school girls, Gangneung high school girls and Busan high school girls in 2017, thus those becomes serious social problems. Therefore some people say that strict punishment of juvenile crimes is needed by lowing the age of juvenile on the Juvenile Act. because nowadays juvenile crimes resemble with adult crimes in ferocity. The Juvenile Act. is recognized as an important ideology to national relation on juvenile protectionism. Therefore, juvenile should be understood as unmature physically and mentally, and the nation ought to strive to make them grow as sound citizen through education and welfare rather than punishment. The problem to solve is formation of an issue to boost requirement of lowering the age of juvenile and of strict punishment whenever juvenile crime happens. Accordingly this study will seek problems that strict punishment of juvenile justice system causes through the amendment bill of the Juvenile Act. in 2017, and the direction to revise the Act. based on the found problems.

경찰조직의 민주성 확보 방안 -`백남기 사건`을 중심으로-

박호현 ( Park Ho Hyun ),김명대 ( Kim Myeong Dae ) 홍익대학교 법학연구소 2017 홍익법학 Vol.18 No.3

The Korean government runs national police system which is commanded and controled by the central government. The national police system under the central government can realize controllability, efficiency, responsibility, legality, but causes connivance to democracy in the police organization. In order to make that disadvantage better, it is needed to mix the advantages of local police system to national police system. National and local police systems are similar with both sides of coin. Therefore, each systems supplement their disadvantages. However, the dualistic form of both national police system and local police system should be the local police system by metropolitan governments rather than primary local government. The reason is related to fiscal self-reliance ratio. Nevertheless, the control tower is necessary when national-wide crimes which is hard to local police organization happen and economic support is needed by central government. Though, democracy should be secured through direct citizen participation in other for the dualistic form. For making up the process of reasonable and clear procedure, citizen participation putting in diverse thoughts is required.