공범관계로부터의 이탈이론과 그 인정기준

황일호(Il Ho Hwang) 중앙법학회 2008 中央法學 Vol.10 No.1

마약류 투약범죄에서의 공소사실의 특정

黃一晧(Hwang, Il-Ho) 중앙법학회 2016 中央法學 Vol.18 No.3

By criminal procedure law, Specifying of Count is needed to guarantee the defendant"s right to defend. But By the characteristics of crime or criminal investigation techniques, in some case the date of the crime is written in a temporary period. In that case Specifying of count is the question. Dose of narcotics is performed in secluded places alone, narcotics crime is proved by appraisal of urine and appraisal of hair. By the appraisal of urine and appraisal of hair the date of Dosing narcotics is usually specified in period not a certain date. So in narcotics crime, usually the problem of specifying of count is happening. The Supreme Court has expressed mixed opinions of work and deliberations, but this was cut short recently, specifying of count by appraisal of urine is granted, On the other hand, specifying of count by appraisal of hair is not granted. In the Criminal Procedure Specifying of count is recognized individual characteristic in the each crimes. The narcotics crime is performed in secluded places alone, narcotics crime is proved by appraisal of urine and appraisal of hair. So Specifying of count on the narcotics crime must be recognize individual characteristic. Such attitude of The Supreme Court is ignoring the unique nature of crime and ignoring same scientific verification methods of appraisal of hair and appraisal of urine. Therefore, Such attitude of The Supreme Court must be changed to recognizing Specifying of count by appraisal of hair. The Supreme Court must recognize Specifying of Count in two or three months period narcotics crime date that is resulted from current level of scientific degree.

징벌적 몰수·추징의 법적 문제

황일호(Il Ho Hwang) 중앙법학회 2008 中央法學 Vol.10 No.2

모발감정결과에 기한 공소사실의 특정

黃一晧(Hwang, Il-Ho) 중앙대학교 법학연구원 2008 法學論文集 Vol.32 No.1

Specifying of count of charge demanded in Criminal Procedure Law is not something with one meaning but its individually specific nature is recognized depending on constructive conditions. Recording of charge based on the result of appraisal of hair and appraisal of urine becomes inevitable in case of narcotics because of secretiveness and difficulty in securing evidence for crimes involving narcotics. When date of crime is recorded in the charge according to presumed period of crime based on result of appraisal the question whether or not it can be considered as effective instituting of public action is raised. From the standpoint of court specifying of count of charge is related to confirming scope of judgement and in case of defendant it is related to the question of guaranteeing right to defend and scope of prohibition of double jeopardy. On the other hand when the suspects deny the fact of abusing narcotics investigation agencies have no choice but recording presumptive period of the term based on result of appraisal as date of crime. Such special aspect raised question on to what extent such practice is to be accepted. Due to special nature of crime involving abuse of narcotics recording charge based on result of appraisal of urine or hair is inevitable to a certain extent and Supreme Court recognizes power of evidence and proof for the result of such appraisal. However regarding such scope and about specifying the date of crime based on appraisal of hair before 2000 Supreme Court through its judgement recognized effect of general recording but after 2000 Supreme Court either denied effort of general recording or demanded result of more scientific appraisal. But it is not possible to state categorically that judgement of Supreme Court completely denies effect of general recording. But it can be seen as a stage of exploring on the questions what will be acceptable level for accepting the recording of specific crime date as effective. Practically best possible solution on specifying of count of charge for cases involving narcotics seems to be Supreme Court's judgement in which the Court ruled that when hair is appraised by classifying hair according to stages of its growth and also by classifying time of abusing narcotics is in detail then specifying of count of charge is acceptable and thus such judgement of the Court is viewed as reconciling positions of investigation agencies and court regarding issue of specifying of count of charge for narcotics case.

특가법상 도주죄에 있어서의 구호의무

황일호(Il Ho Hwang) 중앙법학회 2009 中央法學 Vol.11 No.3

The crime of hit and run driving is a crime which is stipulated under heavy punishment against the hit and run driver in traffic accident in view of difficulty of investigation and high level of criticism on it. It is quite clear that pertinent driver is under obligation to render assistance to the victim in the Crime of Fleeing without Rendering Assistance on the The Road Traffic Act which is element of constituting crime of hit and run driving under The Extraordinary Criminal Act for Heavy Punishment on Some Crimes. However regarding other required actions it is stipulating comprehensively thus specific fact is entrusted to theory of interpretation. In the crime of hit and run driving under the Extraordinary Criminal Act for Heavy Punishment on Some Crimes it is stipulated as `when the pertinent driver fled without performing duty of rendering assistance provided in Clause 1, Art. 54 of the Road Traffic Act.` Thus over the concept of fleeing there is a room of controversy of interpretation on whether or not it is sufficient when simply duty for stopping the car and rendering assistance was carried out or it is necessary to carry out duty of identification by the pertinent driver as decided in the precedent of the Supreme Court. It seemed that Supreme Court`s decision not recognizing the crime of hit and run driving under the Extraordinary Criminal Act for Heavy Punishment on Some Crimes in case of light traffic accidents in no need of assistance by relenting strict law application in the earlier stage is reasonable. However Supreme Court`s including duty of identification in the contents of rendering assistance by the driver involved in the accident has not legal basis and it is contrary to interest protected by law and purpose enactment of Extraordinary Crime Act for Heavy Punishment on Some Crimes and also against principle in the Constitutional Law prohibiting of making disadvantageous statement against oneself and also against guaranteeing right to remain silent under Criminal Proceedings Act. Accordingly it is necessary to change Supreme Court`s precedent of punishing hit and run driver who failed to carry out duty of identification under the Extraordinary Criminal Act for Heavy Punishment on Some Crimes in a manner of focusing more on protecting life and body of the victim of traffic accident which is purpose aimed by the law on crime of hit and run driving under the Extraordinary Act on Heavy Punishment on Some Crimes as early as possible.

즉결심판과 통고처분에 있어서의 일사부재리의 효력

황일호(Il Ho Hwang) 중앙법학회 2010 中央法學 Vol.12 No.3

If all the crimes arising in society are punished through formal process of public trial then it may function as a disadvantage to defendants who committed minor offences thus desire quick trial. Going through useless complex process is contrary to principle for economy in lawsuit. Accordingly countries of the world stipulated system for trial process by simple method for minor crime case. In our country also as simple public trial process for minor cases there are summary trial and fine notice disposition. Summary trial is a system under which minor crime is not disposed by public trial process according to general criminal proceedings law but by simple and speedy trial process. Such summary trial is defined as possessing identical effect of confirmed judgement and even in precedents of Supreme Court broad effect of confirmed judgements is recognized. Also according to fine notice disposition under the law for punishment of minor offence and road traffic law if chief of police station etc. notifies money penalty as stipulated in the law against certain action of law violation to the violater and if such violator pays such money penalty then process of punishment is closed. Only when violator fails to perform it then such violator is subjected to trial under summary trial process thus it is preceding stage of summary trial. For payment of money penalty under such fine notice disposition effect of confirmed judgement is recognized. Summary trial has special feature which is different from ordinary trial process in terms of trial process and principle on evidence. Also fine notice disposition system ends criminal law process through payment of money penalty by violator thus it excludes court`s intervention on process and contents. Regarding summary trial or fine notice disposition effect of confirmed judgement is provided from the standpoint of closing the relevent process. Even though Supreme Court recognized extensive effect of confirmed judgement on summary trial and law on punishment of minor offence regarding payment of money penalty but with respect to payment of money penalty according to road traffic law the Supreme Court granted only limited recognition thus general criminal case is excluded from it. Such attitude of Supreme Court is considered as completely ignoring form of current law and regulation under which fine notice disposition regulation according to law on punishment of minor offence and road traffic law are completely identical in terms of form of legislation, amount of money penalty, process and effect of payment and method of protest etc. It is also contrary to current judgement of Supreme Court. Under which it was stated that regarding recognizing effect of confirmed judgement on payment of money penalty according to summary trial and law on punishment of minor offences it is necessary to consider normative elements in passing judgement on identity of prosecution fact. Therefore effect of confirmed judgement under the summary trial and law for punishment of minor offences should be applied identically. Thus in view of special nature of the system and tenor of the law correct interpretation would be that effect of confirmed judgement reaches only to relevant action in case of summary trial or payment of money penalty. But even when it has close relationship with above for criminal case under criminal law which is conspicuously different in terms of nature of crime and legally prescribed punishment no effect of confirmed judgement should be recognized. Accordingly it is required to change current judgement of Supreme Court on fine notice disposition under summary trial and law on summary trial which lack not only consistency but also contrary to trial result on identity of prosection toward the direction of uniform interpretation.

즉결심판의 기판력에 대한 판례변경의 필요성

황일호(Il Ho Hwang) 중앙법학회 2007 中央法學 Vol.9 No.2

국민참여재판의 중간평가와 향후과제

황일호(Il Ho Hwang) 중앙법학회 2011 中央法學 Vol.13 No.3

System of Civil Participation in Criminal Trial which was introduced for democratization of judicature and for securing trust of the people has been implemented since January 1, 2008 and already 3 years passed since that time. Adoption or no adoption of full scale System of Civil Participation in Criminal Trial was to be decided finally after elapse of 5 years from the date of first implementation of the system. System of Civil Participation in Criminal Trial prompted vigorous debates among proponents on the side of approval and opposition from inception of its introduction and also there were much controversy over forms of its implementation. However the current system was created in a form different from typical American type jury system or Saiban-In (Lay judge)system of Japan. Since introduction of System of Civil Participation in Criminal Trial lots of change have been occurring in criminal trials. Since introduction of unfamiliar jury system there was formal change as shown by upholding principle on primacy of trial and concentrated hearing and speedy trial. In terms of substance there was practical change. Thus difference from conventional trial practice could be sensed as manifested by higher rate of verdict of guiltlessness in comparison with ordinary criminal case. Court showed respect to such decision and Supreme Court expressed its respect to trial on the appeal case in connection with unanimous verdict of guiltlessness. While American and British style jury system was introduced with System of Civil Participation in Criminal Trial however considering it was first introduction of such system to our country unique Korean style system was added to it. It seemed such system is reflecting existing perception of the court which is rooted in its view regarding trial solely based on verdict of jury itself unacceptable. But after elapse of 3 years since implementation of the system now more than 90% of jury`s verdict and trial were found as identical. Thus it appeared that worry shown initially was unfounded one. It is high time now to have interim appraisal and re-appraisal of current system and to chart out direction to be headed in future. In terms of subject cases there is need of unitary regulation as collegiate cases instead of current dual regulation. Instead of maintaining current system based on principle of application there is need for revision of specific regulation in connection with Clause for Court`s comprehensive abatement decision. In terms of procedure for System of Civil Participation in Criminal Trial there is need of simple regulation stipulating number of juries to 5 for the case of confession and 9 for all the other cases. It seems there is need for revising the method of verdict based on quorum and on majority of more than 2/3 instead of simple majority. There are lots of controversy on whether or not juries verdict should have binding power and in this connection it seemed there is need to recognize such binding power when all the juries passed verdict of guiltlessness unanimously or by overwhelming majority of 1/8. At this moment when System of Civil Participation in Criminal Trial which started cautiously but apparently succeeded in finding its roots deeply is high time to dispell any doubt about juries verdict but to revise current System of Civil Participation in Criminal Trial along the time more suitable to original jury system whereby court decision is based on juries verdict in principle so that purport of introduction of the system in the beginning could be kept alive.

위드마크(Widmark) 공식의 적용에 대한 대법원 판례의 문제점

황일호(Hwang, Il-Ho) 한국형사법학회 2009 형사법연구 Vol.21 No.1

In order to punish drunk driving pre-requisite is accurate measurement of blood alcohol concentration. As for method of measurement there are measurement with spirometer and collection of blood. When measurement through above mentioned method is difficult there is method of calculation by Widmark Equation. The Supreme Court recognized Widmark Equation as experiential evidence. And Supreme Court stated that strict proof is required for factors in need of its application and further abstractedly stated that factors which can influence blood alcohol concentration should be confirmed objectively and rationally with assistance of people with professional knowledge and experience. But in reality there were no such practise of proving rigorously or receiving assistance from people with professional knowledge or experience. In additional to such attitude of Supreme Court investigative agencies recognize level of increased value in blood alcohol concentration by means of back calculation and apply it as standard for punishment thus creating aggravated punishment for the drivers. Accordingly problems of its application by the Supreme Court it appears there is need for considerable limitation on Widmark Equation which is now used indiscriminately. In principle use of Widmark Equation should be prohibited and allowing its use exceptionally through appraisal by professionals will be a realistic solution for striking balance between need for Widmark Equation and basic principle of Criminal Proceedings Law professing for presumption of innocence until proven guilty.