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조선시대 사송(詞訟)에서 제기되는 문서의 진정성(眞正性) 문제들
심희기 ( Hui Gi Sim ) 한국고문서학회 2015 고문서연구 Vol.46 No.-
First, I raised an issue in this article whether there had been happened something like authenticity issues in the pre-modern Korean lawsuits(SectionⅠ). The short answer is that although there were no such abstract concepts like authenticity or authentication, pre-modern Korean parties raised, argued, and defended various issues which could be understood clearly authenticity related problems. Second, I chose a very long trial trans-script about slave ownership lawsuit of late 16th century Choson period as a sample evidence. The trial trans-script not only described all the arguments of both parties, but also all the procedures which were taken word by word. I depicted the gist of the lawsuit and analyzed it from the viewpoint of modern authenticity and chain of custody issues (Section Ⅱ&Ⅲ). Third, prohibition and punishment of the forgery of official or private documents are very useful and important to secure authenticity and chain of custody of documents, so I scrutinized the legal regime of Choson period meticulously (Section Ⅳ). Fourth, I compared so called Ib-an·Ib-ji system, which was a kind of public notary regime of Choson period, with that of the Act of public notary of ownership of land and house which was promulgated in the year of 1906 modern Korea. Finally, I concluded that it is necessary to do a study which scrutinize the history of public notary in the West and the East from the viewpoint of comparison, what were the differences and uniqueness`s and what were the results etc.
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심희기 ( Hui Gi Sim ) 연세대학교 법학연구원 2010 法學硏究 Vol.20 No.2
Under `the Assembly and Demonstration Act of Korea`(ADAK), to demonstrate, parade, or make a speech in public, individuals and organizations must obtain a permit from government officials well in advance. In fact, even where permits are not required assemblies may be dispersed for actual and anticipated obstructions of traffic, including pedestrian traffic. Most deplorable thing in Korea is the fact that ADAK can be characterized as over criminalization. This essay quests about whether there could be means to secure the right to assembly and demonstrate at the same time to secure public order and national security. Given the persistence and seeming intractability of police misconduct, Korean people are entitled to be skeptical of all models to control it. The simple truth is that no one approach is sufficient, and all have advantages and disadvantages. However, the 2003 investigation of the Metropolitan Police Department by the Judiciary Committee of the City Council of the District of Columbia, and the report and legislation that resulted from it, illustrated that it can be possible. From this perspective, I introduced the investigation in Part Ⅱ. The investigation focused on how the police handled (or mishandled) anti-globalization demonstrations held in Washington, D.C. from 2000-2003, and how that inquiry led, ultimately, to the drafting of model legislation, “The First Amendment Rights and Police Standards Act of 2004” which became law in 2005. It exposed bad practices and shortcomings and restored a proper balance between law enforcement and liberty. Overall, the effort was a remarkable affirmation that good police practices and freedom of expression are not antithetical. In part Ⅲ, I critically examine various parliamentary reform bills and discuss the possibility whether Koreans can benchmark “The First Amendment Rights and Police Standards Act of 2004”. Various parliamentary reform bills were strengthening criminalization or Decriminalization. In part Ⅳ, I conclude that benchmarking of “The First Amendment Rights and Police Standards Act of 2004” could be possible from the perspective of recent highly developed democratic and constitutional consciousness of Korean people. The nineteenth-century right of western hemisphere was one of assembly without needing to ask permission and of going forth without restriction unless and until one breached the one condition of access, namely that one be peaceable. Today, by contrast, western citizens have a right to assemble on the streets, so long as they obtain permission from officials (if that is required), abide by the terms of the permit issued, and are peaceable. Moreover, the definition of peaceable has been narrowed: An assembly may be dispersed for actually or potentially obstructing traffic (including pedestrian traffic), even where no permit is required. Essentially, this Article argues that the right of assembly should not be collapsed into the right of free expression. It should not be forgotten that when Madison first proposed the bill of rights amendments in 1789 in America, he separated the collective rights of assembly and petition from those of speech and press. The right of assembly protects collective action-political and social. It protects the people and their aspirations for collective public deliberation on issues of public importance. It protects “the right of the people” to have “a public demonstration or parade to influence public opinion and impress their strength upon the public mind, and to march upon the public streets of the cities.”
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심희기 ( Hui Gi Sim ) 연세대학교 법학연구원 2007 法學硏究 Vol.17 No.4
The operative scope of the criminal law is an engine of regulation and social control. Therefore criminal law should be reserved for the most damaging wrongs and the most culpable defendants. But criminal justice system is extensively used as a means to achieve civil remedies in modern Korea. Because of this the line between civil and criminal penalties is rapidly collapsing, and we Koreans see the trend of encroachment of the criminal justice system upon the civil disputes. Although both bodies of law seek to deter, they have historically enforced substantively different types of norms, which are purposely articulated with different levels of precision. When the criminal justice system is used to enforce civil law norms that are aspirational in character and deliberately soft-edged, the result may distort the civil law. More theoretical attempts to explain the civil/criminal distinction have suggested that society may have particular transaction structures for dealing with different areas of social behavior, sometimes using rules that trigger only civil liability and sometimes using criminal sanctions. Obviously, to the extent that these different transaction structures exist, authorizing the interchangeable use of civil or criminal sanctions may distort them. Part Ⅱ―Ⅶ I traces the historical expansion of the criminal justice system into domains previously thought civil relations in character. Part Ⅷ―Ⅸ tentatively proposes what incremental steps might be taken to reestablish a civil/criminal border. In conclusion I strongly argue that the criminal justice system should not be overused. I would argue that the criminal justice system should be reserved to prohibiting conduct that society believes lacks any social utility, while civil penalties should be used to deter (or price) many forms of misbehavior (for example, negligence) where the regulated activity has positive social utility but is imposing externalities on others. This position stems not only from the usual fairness considerations, but also from a sense that overuse will impair the criminal law`s no deterrent functions. The criminal law`s scope must be limited because society`s capacity to focus censure and blame is among its scarcest resources.
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심희기 ( Sim Hui Gi ) 한국고문서학회 2021 고문서연구 Vol.58 No.-
The aim of this paper is to reveal in detail the characteristic features of judicial actions handled by the Provincial Governor of Joseon in the 19th century. In Part Ⅰ, I clarified the meaning of judicial acts. In Part Ⅱ, I presented concrete examples of how the Provincial Governor responded in the field of civil justice area. In Part Ⅲ, I presented the fact-finding function conducted by the Provincial Governor in the felony case, especially capital case excluding homicide cases and the reporting function to the monarch in detail. In Part Ⅳ, I revealed vividly the characteristic appearances of the Provincial Governor’s function in the misdemeanor area (杖以上 流以下) and analyzed its characteristic features. How provincial governor of Joseon did his judicial function was an interesting subject that has no prior research. I guess that the progress of the misdemeanor area (杖以上 流以下) would not go so speedy. Investigation without judicial torture (平問) alone was judged to be difficult to determine the truth of the matter, so introduced measure was judicial torture (刑推). The specific features of the judicial torture were also subject that has no previous research at all, so in Part Ⅴ, I presented various aspects of the judicial torture, especially its non-uniform effects. In Part Ⅵ, I presented a typical example of judicial torture performed by Magistrate according to the direction of Provincial Governor.
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