관세조사에 있어 인권보호장치인 납세자권리헌장과 진술거부권

예상균(Ye Sang-Kyun) 한양법학회 2018 漢陽法學 Vol.29 No.1

The discussion that the right to silence applies to not only criminal procedure but also administrative procedure is in progress. It is generally believed that there is no right to silence on administrative or civil responsibility. But Article 12 of the Constitution about the right to silence should apply to the administrative procedure if it is connected with criminal responsibility. For the Charter on duty payer rights to protect taxpayers from customs duty investigation, namely corporation screening, to have a practical effect, the notice of the right to silence, including refusal to submit data, should be preceded. Only by doing so can they avoid unreasonable compulsory statement demands for administrative purposes and stop the shift to unfair tax offense investigation. Concerns about weakening administrative power due to the refusal to submit the data are already determined by the circumstances as expected under the related statutes. Because the customs act plans to punish those who refuse to submit data to the authorities to a comparatively slight degree and it is prescribed the preliminary tax offense investigation in case of the refusal to submit data. In exceptional cases, when it is necessary to go through the process of transferring to tax offense investigation, not only it is required to obtain the approval from the committee but also a systematic device should be devised to prevent the use of the statements or data at the previous customs duty investigation in the transferred tax offense investigation.

A Study on the Legal Control of the Request for PNR under the Customs Law

Sang-kyun Ye(예상균) 한국국제상학회 2018 國際商學 Vol.33 No.1

Purpose : The purpose of this study is to examine whether the judicial control is necessary to the request for PNR under the customs law. Research design, data, methodology : This paper uses the literature research and the judicial precedent analyzes as to the legal control of the request for PNR under the customs law. Results : Customs has a dual status as the first investigating body of a tariff criminal, such as smuggling, as well as being a customs administrative agency, such as customs clearance. Customs authority to request passenger name records should be used in principle only to operate a border management system to manage risks, but not to achieve other goals, such as criminal investigations. Conclusions : Privacy protection of individuals is not only a fundamental right protected by the Constitution, but also restrictions on their performance should be made by a warrant. Getting rid of this possibility would require not only the efforts of the Customs itself, but also setting clear distinctions and limitations between inspections and criminal investigations, legally and institutionally. 승객예약자료는 여행자의 민감한 개인정보를 담고 있는 것인만큼 그 보호에 각별한 주의를 기울여야 한다. 그러나 범세계적인 테러위험 등에 맞선 위험관리체계로서의 국경관리시스템을 운영하여야 하는 상황에서는 위자료의 적극적인 활용이 필수적이다. 세관은 물품통관 등 관세행정기관으로서의 역할 뿐만 아니라 밀수 등 관세범의 제1차 수사기관으로서의 역할을 동시에 담당하고 있는 이중적 지위를 갖고 있다. 세관의 승객예약자료 요청권한은 위험을 관리하기 위한 국경관리시스템을 운용하는 데에만 원칙적으로 사용되어야 하는 것이지 이를 범죄수사 등의 다른 목적을 달성하기 위하여 손쉽게 자료를 취득할 수 있는 통로로 활용되어서는 안 된다. 개인의 프라이버시 보호는 헌법이 보호하고 있는 기본권일 뿐만 아니라 수사 상 이에 대한 제한은 영장제도를 통해 이루어져야 하기 때문이다. 이러한 가능성을 제거해 나가는 것은 세관 스스로의 노력이 필요할 뿐만 아니라 법제도적으로도 검사와 조사와의 명백한 구분 및 한계를 설정하는 것이 선행되어야 할 것이다.

일반연구논문 ; 마약 투약사범의 공소사실 특정 -모발 투약시기 추정과 관련하여-

예상균 ( Sang Kyun Ye ) 한국법정책학회 2014 법과 정책연구 Vol.14 No.4

Drug investigations is formal, but also specialized field in some sense, so it can be a very special experience of these cases with lawyers. However, it may require more research in that lawyers can judge wrongly only if they access to the drug case by using only general law logic. The facts say there are many controversies in the future that the Supreme Court decision on count specification focused on drug cases. In this paper, many practice cases which were not dealt with in other papers will be broadly discussed. Thus it can be understood why count specification in drug cases is more considered any other crime, despite the protection of defendant``s right to defend himself isn’t absolutely waived. As is pointed out in the Supreme Court judgment, drug use crimes take place in the secret place without witnesses and would be difficult to assess the relevant evidence in most cases. So it is necessary to consider the nature of the crime in determining whether count specification is satisfied. If it could at least meet some standards, it would be admitted that count specification could be fulfilled. One standard is a drug violation record. If the person with a drug violation record, he would fully understand the meaning of the positive result in the hair analysis. The other is the positive result in two or more sections of the hair analysis. Eventually, the court should not dismiss a prosecution but hold a plea by the substantive trial, if the defendant is confirmed as a drug addict according to the above standards. Without strict control of drug, our country may be dangerous in traffic of drug. If there are many consumers, it is inevitable that there are many smuggling of drugs in our country. It is the prerequisite condition of preventing of drug spread that the first step of drug use must be punished.

일반연구논문 ; 마약수사에서의 통제배달기법 고찰 - 마약류관리에관한법률위반사범 중 밀수범죄와 관련하여 -

예상균 ( Sang Kyun Ye ) 한국법정책학회 2015 법과 정책연구 Vol.15 No.2

South Korea is classified as a drug-free country. It means that South Korea government carries out the powerful drug control policy with strong will. Powerful drug control policy means it will fundamentally block the importation of drugs from abroad as well as it will eradicate drug trafficking in the country. In order to achieve the drug control policies efficiently, It is most important to block the import of drugs from abroad at the present time domestic production of drug is disappeared. Eventually, it increases the need to establish a strict monitoring system in the airport and port can be a need for thorough monitoring of the traveler and luggage. But, now immigration and customs clearance procedures are highlighted by this easy and speedy service aspect, so it is very difficult to make a perfect surveillance for the traveler and luggage. Then, the speedy surveillance by using high-tech and the limited investigation on the drug suspect by acuumulating information are the only way which agree with the present service mind. Controlled delivery is often used in the case of drug smuggling, because the drug import case by international mail or package more often happens than the direct personal delivery case. The only way to arrest the real importer is to trace the true receiver along the path of movement of the mail containing the drug. Recently, the supreme court ruling was sentenced whether it is legal or not that customs agent open the international package without search and seizure warrant at the previous step of controlled delivery and whether it is illegal or not that investigator do controlled delivery without search and seizure warrant. The arguments which attain its goals of warrant ideology at the controlled delivery procedure consider the screening of the mail by Customs and the possession of drug by investigator as compulsory investigation like search and seizure. So they assert that the controlled delivery without warrant is illegal. But, Criminal procedure yardstick is diffiult to be applied in all cases in point that the inspection at the customs clearence process is prior to the beginning of an investigation. Controlled delivery, the term of itself is not based upon a premise of investigator`s seizure. And because Controlled delivery is drug crime investigation techniques equipped with sufficient monitoring system in order to prevent the spread of drug, it is not seizure as compulsory investigation that the investigator has a possession of drug.