안락사와 존엄사에 대한 입법론적 고찰

점승헌(Jeom Seung Hun) 원광대학교 법학연구소 2013 의생명과학과 법 Vol.10 No.-

The criminal law has maintained its firm stand against withdrawal of meaningless life-sustaining care from the view of so-called "the principle of absolute protection of human life". There have on the one hand been angles arguing that such perspective of the criminal law does not coincide with the reality but does only add extra burden on the part of patients' families and even medical staff as well, worsening their legal stability and possible anticipation in their living. On the other hand, there have been positions claiming that it would be too early to introduce withdrawal of meaningless life-sustaining care like shock therapy in theoretic as well as real terms. Lots of debates have already been well under way about the death with dignity along with the issue of euthanasia in Korea but have not met any positive approaches toward its solution. In this midst, the Supreme Court of Korea provided recently a criterion for death with dignity on the occasion of its first decree allowing such death. This measure is widely accepted as a representative example of 'judicial activism' with which the court ventured to stop gap between incomplete legislation and real situation by means of positive interpretation of laws in consideration of social pressure to see the death with dignity allowed whereas the National Assembly and the Administration have been overtly conscious of the public opinion. The euthanasia is various legal issue raises some profound questions regarding life and death, process of guiding a person who has entered into the steps of death to a natural death by cases of medical treatment which has been prolonging such person. It is wise to move toward respecting patients personal choice and to take policy measures as soon as possible, the present might be the right moment to make legislation about euthanasia for the sake of human dignity. This controversy has been taboo for too long, legislation should be worked out through a broad collection of public opinion and references to successful foreign regulation and practices need to be continued in this context, that presumptive consent will be the main theory in the case of case life-prolong treatments.

少年 保護處分의 理論的 檢討

占承憲 원광대학 법학연구회 2004 法學硏究 Vol.20 No.-

Also qualitatively, the Korean juvenile delinquency expresses the atrocious tendency with the quantitative increase carrying out the reduction in age, and the repetition of an offense is shown. The present juvenile law specifies a criminal act, criminal contact act, and fear crime sake for wrongdoing coping with such a juvenile delinquency and accumulating healthy protection training of a boy, and deals with specially about these. By the idea of protectionism, he understood the state not as the object of punishment of a juvenile delinquent but as an object of protection, and it aims at social rehabilitation through education from the punishment from an educational and humane welfare viewpoint. The disposal added to a juvenile delinquent by such viewpoint is protective disposition. Protective disposition is disposal which a boy part judge performs to a juvenile delinquent, and educational and a social welfare-measure are taken the central contents about reform of character, environmental adjustment, etc. for the purpose of healthy training of a boy. It is the disposal performed when a boy part judge tries a boy protection incident, a boy’s environment will be arbitrated for their culture reelection or protection, or reform of action will be called for and disposal will be accepted to be necessity to a boy, if it retorts Such disposal is excluded about seven protective disposition in this paper and the clue problem which related to cancellation and change of the relation between a related problem with the purpose of protective disposition, compulsion nature and protective disposition or responsibility, protective disposition, an order for preserving public peace, and a punishment, the effect of protective disposition, and protective disposition from the theoretical side is considered.

組織犯罪의 現況과 對策

점승헌 圓光大學校大學院 1997 論文集 Vol.19 No.-

An organized crime is a crime that is committed by a continuous plotful organization which includes a number of participants from the legal and illegal social area, also is specified by the organization of court rank and the work apportionment. The organized crime is not a new crime happened in modem times, but the word "Organized Crime" has been used from some time ago. Nowadays, the organized crime has become a crime on a large scale and organized. So the damage is caused by it has been increased. Like this, according as the trend of being spread of the area of their activity and social riskiness by the organized crime. I will consider the actual condition of the organized crime and our actuality and try to find a counterplan about the organized crime. The organization of this report is like that the chapter 1 is the institution of a problem as a part of introduction, the chapter 2 is the definition of the organized crime, the chapter 3 is the cause and the special feature and the type of the organized crime, the chapter 4 is the situation of the organized crime in Korea and overseas countries, the chapter 5 is the actual condition of the violence committed by a criminal organization in Korea, the chapter 6 is the ecology of the violence committed by a crimminal organization, the chapter 7 is a counterplan about the organized crime, lastly I will write the conclusion about it in last part.

國際法規에 나타난 少年司法의 基本原則

占承憲 圓光大學校 法學硏究所 2003 法學硏究 Vol.19 No.-

의료과오의 형사적 책임 : 의사의 주의의무를 中心으로

점승헌 원광대학교 법학연구소 2008 圓光法學 Vol.24 No.2

Medical care is considered as one of the most important in the field in the natural science. In modern society, medical science achieved great advance due to the astonishing development of natural science. On the other hand, we face more danger in medical care, because doctors should adopt more technical surgery medicine with side effect and complicated instrument. When medical accident arise, doctor can be charged civil responsibility or criminal responsibility. Medical care is justified in criminal law as professional activity. Medical malpractice is defied as the neglect of duty in the process of medical care. Ahead, deals with criminal negligence in general negligence in criminal law is failure to take care or precautions to prevent the crime. It studies the theorical development in negligence. And the essence of negligence is in the carelessness not in the ignorance of the fact. And we analyze care at large to foresee the crime and to prevent it. We found the basis of care in the law and regulation itself and practice. The next, deals with medical malpractice, it studies the speciality of medical care; risk, collaboration, discretion and technical skill. Negligence, in particular is defined as the omission to do something which a resonable man guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something that a reasonable and prudent man would not do. The reasonable man becomes the duly careful member of the profession.

警察에서의 少年司法節次

占承憲 圓光大學校 大學院 1999 論文集 Vol.22 No.-

In the juvenile justice, the work of the police is that they recognize a juvenile delinguent, notify him to the prosecutory authorities or a criminal court. In a way, the police protect a misdeed and guide a juvenile delinguent in cooperation with family, an educational institution, or a religious organization ; besides, an organization for social welfare. As above, in a position as a judicial officer, the police have a function for the control of crimes as well as an educational and a welfare function of improvement, that is, juvenile justice processing mostly begins by te police. In connection with juvenile justice, the police arrest a juvenile delinguent and dispatch him to juvenile court. And the police crack down on juvenile delinguents, themselves treat him. Moreover, the police get a juvenile delinquent to receive the probation which is regulated to the child welfare law. But in the juvenile justice of nowadays, a new tendency to avoid juvenile justice proceedings is raising it's head. This means the birth of a new treatment-conception. Diversion is the very thing. As the police-diversion excludes the criminal-justice-proceeding from a step which detects a juvenile delinguent, diversion has a deep meaning The followings is the laws and ordinances which relates to the Juvenile Act, the police-diversion, and a summary trial, etc.

안락사와 존엄사에 대한 입법론적 고찰

점승헌 원광대학교 법학연구소 2013 의생명과학과 법 Vol.10 No.-

The criminal law has maintained its firm stand against withdrawal of meaningless life-sustaining care from the view of so-called "the principle of absolute protection of human life". There have on the one hand been angles arguing that such perspective of the criminal law does not coincide with the reality but does only add extra burden on the part of patients' families and even medical staff as well, worsening their legal stability and possible anticipation in their living. On the other hand, there have been positions claiming that it would be too early to introduce withdrawal of meaningless life-sustaining care like shock therapy in theoretic as well as real terms. Lots of debates have already been well under way about the death with dignity along with the issue of euthanasia in Korea but have not met any positive approaches toward its solution. In this midst, the Supreme Court of Korea provided recently a criterion for death with dignity on the occasion of its first decree allowing such death. This measure is widely accepted as a representative example of 'judicial activism' with which the court ventured to stop gap between incomplete legislation and real situation by means of positive interpretation of laws in consideration of social pressure to see the death with dignity allowed whereas the National Assembly and the Administration have been overtly conscious of the public opinion. The euthanasia is various legal issue raises some profound questions regarding life and death, process of guiding a person who has entered into the steps of death to a natural death by cases of medical treatment which has been prolonging such person. It is wise to move toward respecting patients personal choice and to take policy measures as soon as possible, the present might be the right moment to make legislation about euthanasia for the sake of human dignity. This controversy has been taboo for too long, legislation should be worked out through a broad collection of public opinion and references to successful foreign regulation and practices need to be continued in this context, that presumptive consent will be the main theory in the case of case life-prolong treatments.

檢察에서의 少年司法節次

占承憲 圓光大學校 附設 法學硏究所 1999 法學硏究 Vol.16 No.-

社會奉仕命令制度

占承憲 圓光大學校 法學硏究所 2005 法學硏究 Vol.21 No.1

Although the community service order system is taken effect by many nations, it is hard to define. That is the reason why the legal character of it is different in accordance with a punitive organization in every country and it comes into operation very differently in line with a social and cultural condition. But the community service order system is generally considered by the system for making a criminal work without any pay during a given period of time, leading him a normal life. In our country, the probation, community service order and tuition order system on juvenile protection case was taken effect from 1989. And on the basis of the experience the criminal law was reformed in 1995, the law on probation, etc. was reformed in 1996 also. Therefore, the probation, community service order and tuition order system on an adult convict was in operation from 1, 1997. as a necessary consequence. This was introduced into Article 62 - 2 of the criminal law on condition of a stay of execution. As a result, the necessity of operating the community service order system to adult convict also is for a viewpoint of minimizing a moral violation against a convict, protecting an abuse against a confined punishment, maximizing the effect of reparation for a sufferer and society, promoting rehabilitation in society for a criminal, mitigating the number of convicts to be admitted within a prison, diversifying a punishment, and maximizing the effect of social protection from a crime. But, the comprehension about it has been insufficient, since the community service order system on an adult convict was carried out. Also there was many problems in operating it. That is, there need many of probation officer, develops a various contents of program for the community service, and must build up closer cooperation systems between a service organization within a region and a public body. Also the legal emotions of the nation and the feeling of being victimized of a sufferer must be considered for keeping up an optimum level between the contents or period of community service and the punitive execution.

日本의 現代豫防刑法과 法益保護原則

점승헌 원광대학교 법학연구소 2007 圓光法學 Vol.23 No.1

It is said the existing criminal law should be used prudently and reservedly as final means, because it stipulates the most rigorous sanction among laws. The criminal as such final means is entering new phase in modern complicated society. As positive crime and heavy punishment are recently in progress in Japan, criminal legislation has been frequently used to solve social issues. Namely, new regulations are enacted to activate criminal legislation. With respect to the question of object protected by criminal law, it is said criminal law generally protects legal interest. This is so-called principle of protecting legal interest, which is said to critically function on the use of punishment. As seen above, the reserved principle of protecting legal interest confronts the current si tuat ion of act ivated criminal legislation. However, regulation of criminal punishment enacted by excessive expect at ion of use of puni shment owing to increased soc ial uneasiness is necessary to protect the life of nation. Thus, it does not violate the pr inc iple of protect ing legal interest, but meets the request for protect ing legal interest. The principle of protecting legal interest is not 'there is no crime, unless there IS infringement of legal interest' but 'crime is established if legal interest is infringed.' Thus, it does not restrict the criminal legislation. As a result, some point out that the principle of protecting legal interest virtually has no function to restrict the criminal legislation. This dissertation will discuss the meaning of principle of protecting legal interest in Japan and the present discussion. Namely, it will invest igate the expansion of discussion on the opinion that no regulation of criminal punishment that takes protecting the legal interest of criminal law and excludes the relation of legal interest in infringement of legal interest.