아동음란물소지죄에 관한 형사정책 및 형법상의 문제점

이흔재(Lee, Heun-Jae) 한국형사법무정책연구원 2014 형사정책연구 Vol.100 No.-

증거동의의 본질에 대한 역사적 고찰과 현대적 의의

이흔재(Lee, Hun-Jae) 한국형사법학회 2016 형사법연구 Vol.28 No.1

우리 형사소송법에서 증거동의 규정의 본질에 관한 논의는 증거법의 체계와 관련하여 아직 현재 진행형이라고 할 수 있다. 다수설은 동의의 본질을 반대신문권 포기라고 보아 전문증거만을 동의의 대상으로 한정하고 있다. 따라서 물건과 피의자신문 조서는 동의의 대상에서 제외된다. 그러나 이런 해석은 법문의 문리적 해석에 반한다는 단점이 있다. 또한 실무에 있어서 물건과 피의자신문조서에 대한 동의가 이루어지고 있어 법이론과 법현실의 괴리가 발생하고 있고, 이러한 괴리현상에 대한 이 론적 규율이 불가능하여 전문증거이외의 증거에 대하여는 판례법의 영역으로 넘어가고 있는 실정이다. 필자는 이러한 문제의식을 가지고 동의규정의 본질에 대한 역사적 해석을 시도하여 보았다. 동의규정은 과거 대정 일본 형사소송법의 제정시 처음으로 입법화되었다. 입법과정의 자료를 검토해보면, 일본은 영국의 당사자 대립구조의 처분권주의에 착안하여 동의규정을 변용하여 직접주의의 예외로 도입한 것으로 파악된다. 이 규정이 해방 후 우리나라의 형사소송법 제정과 함께 직접주의의 예외로 계수된 것이다. 그 후 군사혁명정권에서 형사소송법을 개정하면서 일본으로부터 전문법칙을 도입하면서 통설은 동의규정은 전문법칙의 예외규정이며 그 본질은 반대신문권의 포기라고 해석하게 된 것이다. 역사적 해석과 문법적 해석에 비추어 볼 때, 동의의 본질은 처분권주의에 가깝다. 그러나 법문상 당사자가 증거에 동의하더라도 ‘법원에서 진정하다고 인정하여야 증거로 할 수 있다’고 하여 직권주의적 요소를 두고 있어 당사자에게 증거에 대한 완전한 처분권을 부여하고 있는 것은 아니다. 따라서 처분권주의에 대한 제한적 해석이 필요하며, 이를 통하여 물건과 피의자신문조서를 증거의 대상에 포함시킬 수 있다. 한편, 과학기술의 발전과 더불어, 현대사회에는 새로운 유형의 증거, 즉 디지털 증거가 등장하게 되었고, 법현실에서는 디지털 증거, 예를 들면 전자녹음기, 사인 작성의 컴퓨터문서 등에 대한 증거동의가 이루어지고 있다. 위 증거들은 종래의 전통적인증거와는 다른 특징들을 가지고 있다. 진술증거이면서 물적증거라는 이중적 성격을 띠고 있으며, 조작이 용이하고 취약하며 원본과 동일한 사본이 만들어질 수 있다. 따라서 원본과의 동일성, 진정성, 무결성의 문제가 중요하게 대두되고 있다. 반대신문권 포기설은 이러한 디지털 증거에 대한 동의에 있어서 아무런 해답을 줄 수 없다. 진정성의 문제는 반대신문권의 포기와 관련이 없기 때문이다. 이러한 점에서 동의규정의 본질에 대한 새로운 해석론이 필요한 시기이다. Discussion of the nature of the evidence consent provisions of our Code of Criminal Procedure, in relation to the structure of evidence law, is still progressive. The existing majority theory says, the Article 318 of the code of criminal procedure is related only to hearsay evidences. They say, the basis of agreement system of evidence is to give up of confrontation right by parties. However, such an interpretation, has a disadvantage which is contrary to the grammatical interpretation of the code because it excludes a protocol in which the investigative agency recorded a statement of a defendant, or ‘thing’ that is provided in express terms in the article 318 from object of consent. In addition to, it is inappropriate to the reality of law. Paying attention to these problems, the author tried to attempt a historical interpretation of the consent provisions. The provision of the agreement was first enacted at the time of Taisho Japanese Code of Criminal Procedure. Japan was focusing on the principle of right to disposal of the United Kingdom’s adversary system and introduced as exception of “Unmittelbarkeitsgrundsatz”. In the light of the literally and historical interpretation of the law, the nature of the consent provisions is similar to the principle of disposal right. However, on the letter of the code, even if the parties are in agreement to evidence, it can be used as evidence by judge’s approval of authenticity, which is the elements of the inquisitorial system. The parties have not granted the full disposal rights of the evidence. Ultimately, the essence of the consent is the parties, in particular the accused’s conduct in procedure which allows the admissibility for evidence and if it passes through the authenticity of examination of the court, it should be interpreted that it has admissibility of evidence. With the development of science and technology, it was supposed to be new types of evidence appeared in modern society. For example, recording tape, digital evidence may be mentioned. They have the characters that are different from the traditional evidence. The characters are the vulnerability, variability and duplication. Therefore, the integrity issue has emerged as a new problem. The majority theory can not give any answer them. In this respect, it requires a new interpretation theory for the nature of consent provisions.

미국의 범죄피해재산에 대한 형사몰수제도와 우리 법제와의 비교

이흔재 ( Lee Heun-jae ) 연세법학회 2021 연세법학 Vol.38 No.-

Korea has shown a lukewarm attitude toward protecting the rights of crime victims against organized fraud and large-scale property crimes. Recovery from the property of the victim caused by crimes was a problem that the victim had to resolve himself through civil procedures, because the state with public power was not supposed to intervene in the judicial process. However, it is almost impossible to get the return of property through a civil procedure with individual abilities, and as a result, a lot of criminal proceeds are left in the hands of criminals. In this article, based on these problems, I examined the criminal forfeiture system of the United States. The biggest difference between the forfeiture of crime-damaged property between the United States and Korea is that the State's intervention is allowed as an exception under the Act on Special Cases Concerning Confiscation and Recovery of Stolen Assets whereas in the United States, in principle, the state actively intervenes in the forfeiture of the property of the victim of a predicate offense. This is not only in terms of protecting victims, but also seems to have the purpose of preventing the reality that numerous criminal proceeds are left in criminals if the victim cannot recover the damaged property from the criminal. In addition, it was verified that there is no significant difference between the forfeiture system with the Act on Special Cases Concerning Confiscation and Recovery of Stolen Assets in the procedures for preserving forfeiture, forfeiture of crime-damaged property of the accused, and forfeiture of crime-damaged property of a third party. This appears to be derived from the theoretical similarity of the judicial system of criminal forfeiture. However, there is a big difference with regard to the crime victim property of a third party. The United States presumes the malice of a third party who acquired property through a transaction after the criminal act. The burden of proof is shifting by having a third party prove their good intentions. For improvement, the state can intervene to forfeiture of crime-damaged property in principle and to ease the burden of proof of state institutions that have to prove malicious intent against crime-damaged property of a third party.

내부고발자보호제도에 관한 입법정책적 고찰

이흔재 ( Heun Jae Lee ) 연세법학회 2013 연세법학 Vol.22 No.-

In modern society, it is not easy to detect an internal corruption of the organization from outside. The reason is that the complexity and large scale of the organization in the public sector or the private sector and self-defence of the organization``s internal logic for its interests. Consequently when insiders who know well about acts of corruption within the organization, notify external, it is the most effective method to control the organization``s internal corruption. In this regard, the study of the whistleblower has been focused on strengthening the system of whistleblower protection for the public interest. This paper generally reviews whistleblower protection system in foreign states, influences on the national legislation, then analyses by comparing ``Act on the Protection of Public Interest Whistleblowers`` and ``Act on anti-corruption and the establishment and operation of the anti-corruption & civil rights commission(ACRC)`` which is representative Whistleblower Protection currently being implemented in South Korea. In the process of research I study following issues: 1) ACRC does not provide a effective means to force the public organizations and private corporation to comply with the request for whistleblower protection 2) the term ``public official``s corrupt act`` defined in this provision is too narrow and limited; 3) the need to realization of the compensation system; 4) the immunity of public interest whistleblower; 5) the expandable application to corporate crime in the private sector; that each issue has been suggested for the improvement. Whistleblower system can be difficult to settle successfully by its nature. However, if it has been expanded and strengthened by legislation, enhanced incentives could increase the whistleblower and it would play a big role as the guardians of the public interest.

국민참여재판에서의 증거법과 사실인정-조서규정을 중심으로-

이흔재 ( Lee Hun-je ) 경상대학교 법학연구소 2018 법학연구 Vol.26 No.1

The fact-finding in the korean jury trial is being conducted by the juries. In the process of fact-finding, the role of the evidence law is very important because criminal fact should be proved by evidence of admissibility. Though evidence law prescribed in our Code of Criminal Procedure has been used by the professional judge’s trial, it is still used in the korean jury trial. In this paper, I investigated whether it is appropriate to use the existing criminal evidence law, which is characterized by admitting admissibility to the dossier, in a citizen participation trial in which the jury judges criminal facts. Our criminal evidence law has many similar aspects of that of the continental law system in germany, but our evidence law has a structure that is difficult to use as evidence produced during the investigation process. In other words, it is trying to approach america’s evidence law by mixing a concept such as the formal authentication, the material authentication, the circumstantial guarantees of trustworthiness and hearsay rule. In the case of germany, the statement evidence collected during the course of the investigation will almost appear in court. However, in our case, if prosecutor does not fulfill the requirements of the formal and material authentication, the circumstantial guarantees of trustworthiness, it does not be used in court. In short, our criminal evidence law can be evaluated as mixing the evidence law of german lay judge system and the american jury system. After that, I examined some operational and institutional problems that occurred when applying these criminal evidence law to fact findings by the juries. As a result, first of all, in order to establishment of substantial authentication of the dossier, playing the video recording in front of the jury can cause bias and confusion so it is desirable to check it in the preparatory proceedings. Secondly, due to the nature of the impeachment, it is possible to make witness Interrogation expressing inconsistent statement before the jury which is written statement dossier out of court. Thirdly, the question-and-answer dossier which is a relic of the past inquisitorial system is inappropriate to read aloud in the courtroom and it has the function to make it easy and effective to transfer the guilty conviction of the investigation institution to the courtroom. It is reasonable to change question-and-answer dossier to descriptive dossier. Fourth, defendant questioning system is not suitable for a jury trial. It treats a defendant as an object, not as a party to the trial so it is reasonable to abolish it. The citizen participation trial is the advance guard in criminal trial in South Korea. Although it may be somewhat experimental, it was time to consider the establishment of independent evidence law applied to the korean jury trial.

항공보안법상 항공범죄의 형사법적 문제점과 개선방안 - 국제협약 및 일본항공범죄와의 비교법적 해석을 중심으로 -

이흔재 ( Lee Hun-jae ) 경상대학교 법학연구소 2017 법학연구 Vol.25 No.3

In this paper, I consider conceptually and systematically aviation crime in Aviation Safety and Security Act of Korea(abbreviation for korean aviation act) with theories of Criminal Law. Also, I examine how the aviation related international treaties have an effect on Aviation Crime in Korean aviation act and compare Korean aviation act with Japan`s Aviation Penal Code which has similar legislation with Korea air penal code. Through the use of this examination, I have found the criminal problems of our Air Penal Code and presented a legislative approach to improve it. As a result of the research, The problems are (1) Even if the words of in flight on the aircraft which is an object of hijacking crime, was deleted in the revision process, it is necessary to revive that words; (2) By Korean aviation act any person who kills or injures any person by committing a crime of hijacking Aircraft shall be punished by death penalty or imprisonment with labor for an indefinite term. However, the difference between death as a consequence of hijacking and injury as a result of hijacking is great so, there must be a difference in statutory penalty; (3) The meaning of aircraft not in service located thereon in crime of causing damage to aircraft is difficult to interpret it, so that it`s definition must be regulated in revised regulations ; (4) In the crime of carrying dangerous articles onto airplain, although the disparity of danger of articles is too large, ignoring the difference between illegal degree and illegality, statutory penalty is same, it is necessary to revise. In response to the above problems, amendments shall be made to the aviation crime under Korean aviation act and in the legislative process of future aviation crimes, it is necessary to amend the law more systematic and faithful to criminal law theory.

일본의 휴대전화에 대한 통신감청과 위치정보추적수사

이흔재(Lee, HeunJae) 전북대학교 법학연구소 2019 법학연구 Vol.60 No.-

“Communication interception for Crime Investigations Act is a general law on telecommunications interception in Japan. This law was enacted in 1999 and has been revised in 2016 to expand the use of telecommunications interception. In addition, the investigator’s collection of communication confirmation data including Cell site location information, requires a search, seizure and inspection warrant pursuant to the Criminal Procedure Code. Unlike our ”Protection of Communications secrets Act“ , it maintains a dual system. In the case of communications interception of Japan, first, the crime subject to monitoring are organized and serious offenses by conspiracy and Communication interception must meet the requirements of the seriousness and complementarity of the crime. Second, the law has specific provisions to strengthen control over the interception process and third, there is a notification and appeal process to the parties. On the other hand, in the cell site location information investigation, relevance should be recognized because the seizure warrant is issued for the past location information data. In addition, the principle of complementarity is applied in relation to ‘the necessity’ for criminal investigation. Real-time cell site location information should be subject to Inspection warrant for under the Criminal Procedure Act. The period for providing real-time location information is very short, usually 7 days, corresponding to the Inspection period. Recently, Japan pointed out that in the 2017 Supreme Court ruling, GPS investigation is constraint disposition and similar to inspection but take new legislative measures because it has other properties that cannot be inspected. Under the influence of the GPS ruling, new legislation is expected to be established for the investigation of cell site location information in Japan.

디지털 증거의 압수수색에 관한 쟁점별 해석과 통제방안 -개정 형사소송법을 중심으로-

이흔재 ( Heun Jae Lee ) 단국대학교 법학연구소 2013 법학논총 Vol.37 No.3

The present research question emerged from the question : Are there significant disparities between the search and seizure of digital evidence and traditional physical evidence? Translating search and seizure rules tailored to regulate physical property into rules that regulate digital investigations raises numerous questions. This paper examines the issues of the search and seizure of digital evidence, particularly of controversy about conflict of interest between the right to privacy and the purpose of investigation. As sources of evidence, computers can contain an incomprehensible amount and variety of data, which commingles many innocent documents with a much smaller number of documents that contain evidence of a crime. Today, many computers generally have storage capacities of one terabyte, which could hold an amount of text roughly equal to the amount of information contained in the academic library building, if computer users are filling these drive with more information than they did before. Therefore, the restriction on the search and seizure in digital evidence is needed for minimal invasion of privacy rights. In order to achieve this purpose, two regulation theory is discussed ; one is Ex Ante regulation of computer search and seizure, the other is Ex Post control of that. The author contends that Ex Post regulation is more efficient than Ex Ante regulation to balance between privacy interest and investigation. Ex Ante control tends to overly restrict the efficiency of investigation by comparison with Ex Post regulation. On the other hand, Ex Post regulation can suppress admissibility of evidence if the inspection of digital evidence is beyond the scope of issuing warrant and provide the right to participate to the parties related to the crime in computer forensic process. Moreover, it can rest on prosecutor in a trial the burden of proof if defendant challenges admissibility of evidence.

아동,장애인에 대한 성범죄의 현황과 범죄억지책에 대한 연구

이흔재 ( Hunjae Lee ) 홍익대학교 법학연구소 2015 홍익법학 Vol.16 No.2

Historically, child and the disabled were typically social the disadvantaged and they were excluded in society because people of that time regarded them as minorities or inherent sinner. But, nowaday, people think that they must be protected from social prejudice, human rights violations and a crime. In particular, since sexual offense against child and the disabled has come to be dangerous, members of society gravely consider that kinds of that crimes must be eradicated in the country. Recently, crime rates of sexual crime against child and the disabled increase highly. According to statistical data, our nation has had a crime rates against child of about sixty-three percent for the last ten years, while child population ratio has been in decline. Coping with this situation, the government imposes new security measures such as the disclosure system of personal information of sexual offenders, electronic device for position tracking and chemical castration in oder to crime deterrent effect against sexual crime against child and the disabled. However, the security measures have more the character of punishment than that of handling of public security. With regard to criminal law theory, Korea has the dualism system which consists of punishment and security measures whereas America has the monism system which is composed of punishment. Even though some security measures, especially electronic device for position tracking, seem to have an positive effect on recidivism control, it is inappropriate to consistency of criminal law theory on account of the character of punishment. There is a good chance of confusion of punishment theory and uncoordinated severe punishment, if they are mixed. Therefore, seen from this point of view, the application of this measures against sexual crime against child and the disabled should be cautious.

진술번복 증인에 대한 검사 작성 피의자신문조서에 관한 위법성판단과정에 대한 논증 검토 -대법원 2013. 8. 14. 선고 2012 도 13665 판결-

이흔재 ( Heun Jae Lee ) 홍익대학교 법학연구소 2014 홍익법학 Vol.15 No.2

This paper deals with the question of Precedents about Supreme Court Decision 2012Do13665 delivered on August 14, 2013. The Supreme Court decided that a protocol of suspect by prosecutor`s questioning upon perjury suspicion against the witness who testified at a preparatory hearing or trial was summoned by prosecutor later and reversed his former testimony favorable to defendant was illegally obtained evidence and cannot be admitted as evidence because it is against a litigation structure under the current criminal procedure law focusing on parties, trial, and directness. It also violates a fundamental right under Article 27 of the Constitution a right to a trial with opportunity to attack and defend in trial where all evidences are investigated and stated before judge. However, I think that a protocol of suspect by prosecutor`s questioning upon perjury suspicion against the witness be different with prosecutor`s questioning of the witness. The quality of perjury investigation against witness is dissimilar to that of prosecutor`s questioning of the witness who testified at a preparatory trial and reversed his former testimony favorable to defendant because it is a discrete procedure of investigation of perjury case comparing with the latter which is extensions to the original procedure of criminal cases. Both a litigation structure under the current criminal procedure law and a violation of Article 27 of the Constitution a right to a trial which are based on Supreme Court Decision about exclusionary rule are much obscure. Therefore, they could bring about weakening of the criminal justice system and confusion of criminal evidence law. Seen from this point of view, illegality judgment should have careful, rational and convincing by strict interests-balance theory. In conclusion, Supreme Court Decision 2012Do13665 leaves the lack of clear standard of exclusionary rule and concrete argumentation of illegality judgment.