추상적 환경위험범

정금천 청주대학교 법학연구소 2003 法學論集 Vol.19 No.-

추상적 환경위험범

정금천 淸州大學校法學硏究所 2002 法學論集 Vol.19 No.-

형사소송법개정안에 대한 고찰

정금천 청주대학교 학술연구소 2005 淸大學術論集 Vol.5 No.-

On August 30, 2004, the Ministry of Justice (MOJ)announced the draft amendment to the Criminal Procedure Act. The draft amendment may be summarized as aiming to substantially strengthen the system for guaranteeing the rights to defense and human rights of the suspect/accused to the maximum level. The Criminal Procedure Act is therefore said to become more faithful to protecting human rights. Contrary to MOJ's expectation, however, this draft amendment can hardly be worth the appreciation that it will be faithful to protection of human rights, either, in terms of the points described below: The draft amendment prepared by MOJ is welcome at all, in that it intends to make the mandatory screening arrest warrant, an integral part of the judicial system, which has been enforced arbitrarily so far. With the proposed introduction of a quasi-appeal allowed against the results of mandatory screening arrest warrant, the system may turn into a de facto trial under the multiple trial system and a great part of courts' capabilities will be indispensably concentrated on examination of arrest warrants rather than on trials of actual cases. Then, trials of actual cases are likely to be reduced to ruins. Furthermore, it also causes a problem by having the contents of such mandatory screening arrest warrant recorded as a process verbal. It can be easily seen that neither the existing system nor the draft amendment does embrace a variety of bail system; especially non-financial bails are less available, compared with the United States. Therefore, non-financial bail system should be necessarily reinforced more extensively. The right to assistance from the attorney, which is guaranteed under the Constitution, is not deemed to be sufficiently protected thereby, in that both of them restrict the attorney's right to participate. Since the attorney's right to participate in interrogation of the accused is a vital right under the Criminal Procedure Act, it should be in no way limited or restricted by any regulations at all. The existing provisions that, upon emergency arrest, the arrest warrant has only to be requested "within 48 hours"thereafter is said to be revised so that the arrest warrant must be requested "promptly after emergency arrest" and, if decided not to request any arrest warrant, the accused must be immediately released. Nevertheless, a problem lies with the fact that the term "promptly" does not necessarily mean "immediately after such arrest"to the letter, but it means that the prosecutor in charge is obliged to request the arrest warrant promptly when he/she deems that relevant investigation has been completed after having secured and investigated the accused. As another problem involving the draft amendment, I would like to point out that the arrest warrant must be issued in the form of an ex post factor warrant. To have an arrest warrant issued is in inconformity to the purpose of the warrant system and, furthermore, it practically results in exclusion of the said system. If any of such rights of the suspect/accused are violated, it can be remedied by applying the procedures for remedies domestically available, such as quasi-appeal, prosecution or judges' arbitration. As such remedies are not sufficiently reliable, either, it should be able to be remedied using the personal notice system as provided in the International Covenant on Civil and Political Rights. In the event that, through the personal notice system, measures pursuant to the domestic laws and regulations prove to fall short of the standards as provided in relevant international treaties, it should be eligible for a retrial.

양벌규정의 기능과 한계 -대상판결 1999. 7. 15선고 95도2870 전원합의체 판결(건축법위반)-

정금천 청주대학교 법학연구소 2002 法學論集 Vol.18 No.-

함정수사에 관한 고찰

정금천(Jeong Keum-Cheon) 한국형사법학회 2006 刑事法硏究 Vol.26 No.-

  Agent provocateur means all preliminary countermeasures and deceptive way of investigation in which the investigating organization hides its identity on its own or using the source of information. This agent provocateur has been used to investigate the crimes such as drug related crimes or prostitution.<BR>  In spite of usefulness of the method, there are serous problems that the method has possibility to conflict with the principle of guarantee of human right. And the agent provocateur stands between two conflicting values, defense of society and guarantee of human right. agent provocateur occurs only when the criminal design originate with the officials of the Government, and they implant it in the mind of an innocent person. So the agent provocateur has the possibility to violate the human right.<BR>  From this point of view, we need a judgement standard of illegality of agent provocateur which do not infringe on the human right. And we must find out the suitable line which permitted limit in the due process and also study on the mutual relation between standard of illegality and legal effect of agent provocateur.<BR>  This concern prompted a lot of discussion about how to control the agent provocateur. A series of proposals have been made, like the control through the judicial procedure, the internal control by investigating organization, the punishment of the abettor of trap as abetting criminal, and so forth. Meanwhile those discussions have not been occurred at one time, but separately. Consequently, no theoretical consistency has been demonstrated as to the way of control. This dissertation tries to put forth the arguments proposed previously and review what relevance those arguments have respectively.<BR>  In defining the agent provocateur, this writer suggests in this paper that the cause should be added to the subject of the agent provocateur, the abettor of trap should be punished as the abetting criminal, and the entrapped person should be found not guilty in the Court from the perspective of judicial law, considering that such a person caught in the agent provocateur is dismissed  of the responsibility in terms of substantial law.<BR>  This is significant and meaningful in that it tries to match the procedure law and substantial law. Moreover, this paper also looked at what significance the latest rulings of Supreme Court on the agent provocateur have in terms of judicial procedure.<BR>  It is important to clearly define the boundary of punish ability because the agent provocateur is one of ways to investigate crimes despite its inherent problems. In that sense, this paper is meaningful and significant in term of the legalization of agent provocateur.

형사소송법개정안에 대한 고찰

정금천 ( Geum Cheon Jeong ) 청주대학교 법학연구소 2005 法學論集 Vol.24 No.-

On August 30, 2004, the Ministry of Justice (MOJ)announced the draft amendment to the Criminal Procedure Act. The draft amendment may be summarized as aiming to substantially strengthen the system for guaranteeing the rights to defense and human rights of the suspect / accused to the maximum level. The Criminal Procedure Act is therefore said to become more faithful to protecting human rights. Contrary to MOJ`s expectation, however, this draft amendment can hardly be worth the appreciation that it will be faithful to protection of human rights, either, in terms of the points described below: The draft amendment prepared by MOJ is welcome at all, in that it intends to make the mandatory screening arrest warrant, an integral part of the judicial system, which has been enforced arbitrarily so far. With the proposed introduction of a quasi-appeal allowed against the results of mandatory screening arrest warrant, the system may turn into a de facto trial under the multiple trial system and a great part of courts` capabilities will be indispensably concentrated on examination of arrest warrants rather than on trials of actual cases. Then, trials of actual cases are likely to be reduced to ruins. Furthermore, it also causes a problem by having the contents of such mandatory screening arrest warrant recorded as a process verbal. It can be easily seen that neither the existing system nor the draft amendment does embrace a variety of bail system; especially non-financial bails are less available, compared with the United States. Therefore, non-financial bail system should be necessarily reinforced more extensively. The right to assistance from the attorney, which is guaranteed under the Constitution, is not deemed to be sufficiently protected thereby, in that both of them restrict the attorney`s right to participate. Since the attorney`s right to participate in interrogation of the accused is a vital right under the Criminal Procedure Act, it should be in no way limited or restricted by any regulations at all. The existing provisions that, upon emergency arrest, the arrest warrant has only to be requested "within 48 hours" thereafter is said to be revised so that the arrest warrant must be requested "promptly after emergency arrest" and, if decided not to request any arrest warrant, the accused must be immediately released. Nevertheless, a problem lies with the fact that the term "promptly" does not necessarily mean "immediately after such arrest" to the letter, but it means that the prosecutor in charge is obliged to request the arrest warrant promptly when he / she deems that relevant investigation has been completed after having secured and investigated the accused. As another problem involving the draft amendment, I would like to point out that the arrest warrant must be issued in the form of an ex post factor warrant. To have an arrest warrant issued is in inconformity to the purpose of the warrant system and, furthermore, it practically results in exclusion of the said system. If any of such rights of the suspect / accused are violated, it can be remedied by applying the procedures for remedies domestically available, such as quasi-appeal, prosecution or judges` arbitration. As such remedies are not sufficiently reliable, either, it should be able to be remedied using the personal notice system as provided in the International Covenant on Civil and Political Rights. In the event that, through the personal notice system, measures pursuant to the domestic laws and regulations prove to fall short of the standards as provided in relevant international treaties, it should be eligible for a retrial.

양벌규정의 기능과 한계 : 대상판결 1999.7.15선고 95도2870 전원합의체 판결(건축법위반)

鄭金天 淸州大學校法學硏究所 2001 法學論集 Vol.18 No.-