Reform Trends of Criminal Procedure in East Asia : Transition to Globalization and Rule of Law

Cho, Byung-Sun 淸州大學敎 學術硏究所 2005 淸大學術論集 Vol.6 No.-

형법이론의 보편적 가능성

조병선 청주대학교사회과학연구소 2017 한국사회과학연구 Vol.38 No.2

Nowadays the most ambitious project of criminal law looks like making the elaboration of a universal structure of crime. Given the practice and case law of international criminal tribunals, the question of a universal structure is especially relevant in the field of international criminal law. Thus, the theory of the national criminal law must also be developed to the direction of the universality of criminal law theory from on the basis of the national systems and doctrines. Such an approach, as any serious work on comparative law, requires a mastery of both the continental and the anglo-american legal systems. Still, while it is clear that the universality of criminal law can make a valuable contribution to the creation of a universal system of crime it seems equally clear that the answers to the fine solution cannot be found on the level of a concrete model. The author is trying to build a concrete model and to pretend to offer relatively definitive answers. 인류역사상 보기 드물게 급격한 세계화가 진행되면서 이제 범죄도 세계화 또는 국제화되었다. 이에 국제범죄에 대한 형사처벌을 하기 위해 국제 형사 재판소에 관한 로마규정이 1998년 7월 17일 로마에서 채택되어 2002년 7월 1일 발효되었고, 이 다자간 조약을 국내법적으로 시행하기 위하여 2007년 ‘국제형사재판소 관할범죄의 처벌 등에 관한 법률’이 제정되었다. 이 논문은 이러한 시대의 변화에 따라 지금까지 대륙법을 계수한 우리나라가 그 체계 속에서만 형법이론을 발전시키는 단계를 넘어서야 한다는 문제의식을 가지고 야심찬 프로젝트로서 ‘범죄개념의 보편적 구조’를 도출하는 작업을 시도하였다. 세계화의 흐름과 국제형사재판소의 등장으로 이미 대륙법 국가에서나 영미법 국가에서나 이러한 작업을 꾸준하게 시도하고 있는데 반해서 아직도 우리나라는 이에 대한 시도가 거의 없으므로 이 논문의 시도는 시도 그 자체만으로도 의미가 있을 것이다. 형법의 보편적 가능성을 긍정하고 그에 따라 필자가 시도한 구체적 내용은, 구체적으로 우리나라의 형법을 기반으로 하면서도 국제범죄나 국제형사재판소의 대상범죄에도 모순 없이 적용 가능한 형법이론을 구축하는 시도를 하였다.

診斷確定을 爲한 腦波檢査所見의 比較硏究

趙載善,樣秉煥 朝鮮大學校 醫學硏究所 1982 The Medical Journal of Chosun University Vol.7 No.-

In this study, it was attempted to study the responses of the E.E.G. in suspected epileptics and patients with other organic brain diseases who would confront military service. One hundred and eighty three patients who wanted the medical certificate to evade the military service and eighty three patients without any military concern were included in this study. All the subjects were the outpatients in Neuropsychiatry department in Chosun University Hospital from August 1979 to July 1981. Their ages were between nineteen and twenty seven years. The results were as follows: 1. Among the 183 patients who wanted the medical certificate, 94 patients(51.4%) showed abnormal E.E.G. findings, and among 83 control group, only 26 patients (31.3%) showed abnormal findings. 2. Among 163 patients who wanted medical certificate for convulsive disorders, 85 patients (54.0%) showed abnormal E.E.G. findings, and among 44 control group, 24 patients (54.5%) showed abnormal findings. 3. Among 20 patients who wanted the medical certificate for other organic brain syndrome than convulsion, 6 patients (30.0%) showed abnormal E.E.G, findings, and among 39 control group, only 8 patients (2.1%) showed abnormal findings. 4. Among 207 patients who were reported to have convulsions, 112 patients (54.1%) showed abnormal E.E.G. findings, and among 59 control group, only 14 patients (23.7%) showed abnormal findings. 5. Among 207 patients who were reported to have convulsions, 19 patients (9.2%) showed spike waves, and 64 patients (30.9%) showed slow waves.

유아특수교육 기관의 개별화교육프로그램 운영실태 및 개선 방안

조광순,전병운,박혜준,홍은숙 국립특수교육원 2005 특수교육연구 Vol.12 No.1

본 연구에서는 유아특수교육교사 8명과의 심층면담과 30개의 IEP 문서 분석을 통해, 특수교육진흥법 상의 규정과 유아특수교육 추천 실제에 따른 IEP의 질적 수준을 알아보았다. 연구결과 특수학급 교사의 경우 유치원 교육과정과의 연계가 부족한 IEP를 작성하여 운영하고 있으며, 개별화교육운영위원회는 실질적으로 소집되지 못하고 있고, IEP의과정에 보호자의 참여 정도는 미미한 것으로 나타났다. 대부분의 IEP 내용은 유아의 현 수행수준에 근거한 장 · 단기 목표의 기술을 제외하고는 상당히 형식적이고 제한적이어서 IEP 운영에 도움을 주지 못하고 있는 것으로 나타났다. 그러나 특수교육진흥법 상에 규정되어 있지는 않지만 실제 현장에서는 가족지원이 다양한 방식으로 이루어지고 있으며, 다학문적 팀의 구성과 구성원들 간의 협력은 교사에 따라, 또는 기관에 따라 큰 차이가 있는 것으로 나타났다. 일반 유치원 프로그램의 일일 계획안과 IEP와의 연계, 발달적 교육과정과 유치원 교육과정과의 연계, 목표의 수정, 개별화교육운영위원회의 협력적 참여, 객관성 있는 수행 평가 면에서 유아특수교육교사들은 어려움을 나타내 보였으며, IEP 작성과 운영에 따른 문제를 해결하기 위해서는 무엇보다도 표준화된 IEP 양식 또는 구조화된 IEP와 평가준거의 예가 제시된 IEP 모델이 필요한 것으로 교사들은 제안하고 있다. Various research has identified a number of problems with individualized education program (IEP) development and implementation among schools, including a lack of adequate teacher training, poorly developed team processes, minimal coordination with general education, and failure to develop measurable goals and objectives to evaluate child achievements. The purpose of this study was to evaluate the quality levels of IEPs implemented in early childhood special education (ECSE) settings based on recommended ECSE practices and requirements of the Korean Special Education Enhancement Act. Through an in-depth focus group interview with eight ECSE teachers from eight different programs and an analysis of 30 IEPs, the study investigated: 1) how regulations on IEP development and implementation of the Special Education Enhancement Act, specifically regulations on IEP team organization and implementation, parent participation, and IEP contents, are interpreted in ECSE programs; 2) how ECSE program professionals collaborate with families and how family supports are provided; 3) how a multidisciplinary approach is put into practice and effective levels of collaboration among IEP team members; 4) ECSE teacher suggestions for solving problems with IEP development and implementation, and for improving practices. The results indicate that special education classroom teachers of regular kindergarten programs develop and implement IEPs that are irrelevant to their curricular. IEP procedural deficits were found in the area of team process. It was found that the ECSE programs lack a multidisciplinary team approach when developing and implementing IEPs. Overall, parental participation was not ensured even though regulations require IEP teams to include parental requests in IEPs and implement their signed IEPs. Key personnel such as regular early childhood education teachers and therapists were found to be absent from IEP meetings. However, differences were found among the programs in the team process. Programs specialized only for young children with disabilities demonstrated higher levels of team approaches than those of ECSE programs in special schools and regular kindergartens. In this study, limited content of IEPs were found to be developed for young children with disabilities. IEP goals and objectives analyzed in this study were shown to be generally adequate, showing that children's levels of performance information and annual goals were congruent and that measurable goals and objectives were developed. During the in-depth interview, it was learned that ECSE teachers provide support to children and families, coordinating services in the community for children with disabilities. The results of this study also show that ECSE teachers in regular kindergarten programs have difficulties in linking IEP goals with their daily instructional plans as well as linking their general curriculum with developmental goals for young children with disabilities. Overall, teachers in this study demonstrated difficulties with modification of IEP goals, facilitating collaborative IEP team participation, and objective monitoring of IEP goals. They suggest that standards for IEP and structured IEP forms be developed. They also suggest that model IEPs be introduced by school districts. The findings of this study suggest that: 1) specific IEP procedures need to be mandated through special education laws and regulations in order to facilitate and monitor team approaches when developing and implementing IEPs in ECSE settings; 2) a coordinated service system is needed to provide comprehensive services to young children with special needs and their families; 3) there is an urgent need for comprehensive curriculum-based assessment tools that reflect various developmental aspects as well as diverse special needs and suggest assessment guidelines; 4) it is important to provide strong pre-service teacher education programs as well as in-service work shops for teachers in order to develope skills in developing meaningful IEP goals and objectives linked to curriculum and daily classroom routines; and 5) IEP model development research should be facilitated.

원자력 안전규제 법규의 개정 : 미국, 유럽, 일본, 한국의 경험을 근거로 한 비교법적 고찰 American, European, Japanese and Korean Experience

趙炳宣 청주대학교 법학연구소 2001 法學論集 Vol.18 No.-

현행 원자력법규는 내용상의 문제점을 내포하고 있으므로 이를 개선하기 위하여 원자력법의 기초적인 법리적 검토를 하여 법령의 본질, 위임, 준용 등 규제법규의 본질과 특성에 기반을 둔 원자력법규의 발전방향을 제시하였다. 구체적인 내용상의 문제점을 해결하기 위하여 허가·지정·승인등의 기준을 파악하고 각종 조치의 일관성을 추구하고, 규제상의 차이점을 불식시키는 일관성을 유지하도록 각각의 조문별로 그 개선안을 제시하였다. 가존의 조문의 개정과 개선안의 해석의 기준이 되는 판례들을 미국, 독일, 일본과 한국의 판례를 비교하여 분석하였다. Since the present legal system on nuclear safety regulation has some problems that refer to contents of regulatory provisions, this mid-report has preformed research on the legal basic theory of nuclear safety regulation. And then secondly this report analyzed the problems of each provisions and suggested the revision drafts on the basis of analyzing problems and the undergoing theory of nuclear safety regulation. In order to interpret easily this report finally took the cases of judicial precedents on nuclear safety regulation in USA, Germany, Japan and Korea.

企業刑事責任에 대한 比較法的 연구 : 특히 監督責任에 관한 독일과 일본의 판례에 대한 비교연구

조병선 청주대학교 학술연구소 2004 淸大學術論集 Vol.4 No.-

Each State Party undertakes to impose penal sanctions on persons who participate in illegal acts committed by or on behalf of corporate entities. Whether corporate entities can be penalized, civilly or criminally, varies among nations. In some nations, corporate entities can be penalized for engaging in environmental crimes. This raises an issue of whether a corporation may be penalized for the activities of its personnel or agents, despite the absence of an overt act on the corporation's behalf. At minimum in nearly all nations, the director, officer, or agent's actions must be within the scope of their employment. Furthermore, there usually must be evidence that the unlawful activities were directed by or with the consent of a senior corporate official and that the direction or consent was given within the scope of that official's authority. Here, the criminal liability of enterprises will be discussed firstly in connection with the criminal liability of individual officers or employees, and secondly in the context of the enterprise as such. 1. Activities in corporate bodies are typically the result of many interlocked decisions, with a tendency for wide delegation of responsibilities. As a result, where there is "organizational wrongdoing" a criminal system based upon personal fault has difficulties identifying and successfully prosecuting the individual person's responsible. This can lead to an "organized irresponsibility"of individual employees. Therefore, as to perpetrators, both statutory and case law are in the process of extending individual criminal liability especially in the area of entrepreneurial activity. What is the theoretical basis of the criminal liability of corporate officers who in fact are regarded as "responsible persons"? In this case, the vicarious criminal liability of a director, a representative and a manager is avoided because the doctrine of a criminal responsibility is increasingly emphasized. They are to be punished, only when they themselves commit an alleged crime. In general, there are now three approaches: (a) The basis of liability of corporate officers may be a corporate criminal act by them within their knowledge and control even if the individual has not performed the unlawful act, at least when such individual ordered or authorized the activity. (b) A broader basis of liability may apply to situations where the corporate officer knows of a subordinate's unlawful activity and does nothing to prevent it. If the corporate officer stands in a position of responsibility over the act in question, liability may be predicated on the failure of the corporate officer to adequately supervise subordinates. (c) A still broader basis of liability is similar to strict liability: the corporate officer may be liable even without evidence of the officer's direct participation or acquiescence in a subordinate's unlawful behavior if the corporate officer holds a responsible position. Only an officer who exercises a high degree of care in attempting to prevent the illegal activity will avoid liability. Approach (a) can be reached by the traditional criminal theory of alders and abettors, but approach (b) or (c) is beyond the reach of this traditional theory. The international trend is to reduce the requirements for intentional behavior when dealing with industrial perpetrators, to create a presumption of intent or to change the burden of proof (approach (b) or (c)). Faced with the above-mentioned difficulties as "organizational wrong-doing" or "organized irresponsibility", it is not surprising that, in many countries, adherence to the traditional principle that criminal liability requires personal fault (approach (a)) is being sacrificed in an effort to secure greater environmental protection. 2. When a corporate behavior has been determined to constitute a crime, it is possible to punish not only an individual perpetrator but also an enterprise itself. Several ways of punishing the enterprise itself exist. In the United States, for example, sanctions include putting the corporation in the custody of a U.S. Marshall, requiring reforms of operations, forcing community service by the corporation and/or individuals, fining, imposing substantial restitution, and providing notice to victims. Punishments can be cumulative. In the case of fining, the estimation of the illegal gains is not admitted generally, but in some countries there are special regulations where such estimation is deemed necessary. For example, in the case of surcharge in the Japanese Antimonopoly Act, the law can deprive illegal gains through imposing a certain rate of the turn over of the enterprise with a clear numerical formula.If national law does not permit corporate culpability,then the implementing legislation should reflect that limitation. However, worldwide there is a tendency to attribute responsibility on an impersonal basis. Even in states that have traditionally adhered to the principle of societas delinquere non potest (enterprises cannot be criminal) Other countries adhere formally to the principle that an enterprise cannot be criminal, but there is a growing tendency toward imposing criminal liability on enterprises.they have looked for ways to impose non-criminal sanctions on those enterprises. 3. However, in countries like Korea or Japan, the difficulty is not in imposing criminal penalties against the enterprise itself, but rather, in the determination of personal fault. For example, the Korean legislature provides as does the Japanese that a corporate entity is imputed liability if its representative or agent commits a crime under its implementing legislation. According to this provision, however, one should prove who in fact violated the alleged regulation, because that provision requires only that an individual perpetrator acted illegally. Therefore, to prove the illegal conduct of an individual perpetrator is a necessary condition to punish an enterprise. It often happens that the individual perpetrator is difficult to find, especially in the case where the enterprise is a large organization. After the individual perpetrator has been found, it needs to be proved that the conduct of the enterprise is somehow negligent. That is: the enterprise did not meet the duty of care to keep the employee from committing a crime. This omission constitutes a crime of the enterprise. In order to solve this difficulty of evidence, the Korean judiciary has adopted the co-called theory of fault-presumption that allows for finding that a supervisorial duty has been violated within a certain circle of persons. This idea reflects the present difficulty of punishing a large and complicated organization, but has met strong criticism because of the doctrine of guilt ("Schuldprinzip") recognized by the Korean Constitution. As Heine offers, "guilt", as the specific responsibility of the enterprise, should be understood in the sense that the material disposition of the firm prevented it from making legal coordination and reorganization decisions and allowed defective risk management with serious socially detrimental effects to prevail. Faulty decisions over time replace individual guilt.

대전지역 공중화장실의 실태조사 및 설비개선에 관한 연구

조병선,장재영 한밭대학교 2004 한밭대학교 논문집 Vol.21 No.-

As for the general review of toilet in the Daejeon metropolitan city, it found that 'Good' evaluation took 28% of them, and 'Bad' 72%. In terms of the place, the evaluation of general hospital toilet and public office were excellent. On the other hand, it found that the evaluation of toilet in the resort and beach were relatively low. The public toilet is considered as a scale that explains the countries' cultural level directly. It seems to be a standard of cultural architecture in the countries. After all, it needs to convert the concept of toilet as a space of toilet as a space of citizens' consciousness level and cultural level as well as a space of solving the physiological desire simply.

국제형법에서의 조직범죄 : 카탕가판결과 후지모리판결을 중심으로

조병선 청주대학교사회과학연구소 2015 한국사회과학연구 Vol.36 No.2

단체책임이론의 단초가 되었던 조직지배이론과 논란의 여지는 있지만 국제형법적으로나 국내형법적으로 이 이론이 적용되었다고 보여지는 후지모리-판례와 카탕가-판례를 검토하였다. 이 때 실행행위를 수행하는 행위매개자의 ‘행위준비상태’, 다시 말해서 행위매개자가 기꺼이 ‘조직의 조직체계적인 행위성향’을 드높이는데 관여하는 행위를 한다는 분석이 매우 중요하다. 결국의 개인이 조직을 지배하는 것이 아니라 조직이 강화되어 모든 것을 통괄하는 ‘조직의 지배성’을 강화하는데 기여한다는 점이 고려되어야 한다. 비록 ‘행위준비상태’가 기꺼이 조직원으로서 조직의 행위에 참여하겠다는 의미가 강할 뿐, 간접정범과 교사범을 구별하는 기준이 되지 못하더라도, 반대로 전체행위에 대한 책임귀속을 정하는데 아주 중요한 기준이 되기 때문이다. 바로 이러한 이유로 조직체의 리더는 단체계획을 기획한 자로서 자신의 명령의 하달의 확실성을 전제로 하지 않고 바로 리더라는 지위만으로도 전체행위책임을 귀속시키는 자로 확정하기에 충분한 근거가 되기 때문이다. 조직체의 리더에 대한 이러한 귀속책임은 1963년의 록신의 조직지배이론은 ‘조직화된 권력장치’를 통해 행위지배를 한다는 구체적 근거를 이룬다. 이제 여기서 더 나아가는 이론구성이 필요한데, 이 논문은 우연히도 역시 록신의 의무범이론이 좋은 이론적 도구가 된다고 본다. 이러한 관점에서 논문의 필자는 록신의 조직지배이론을 의무범이론과 함께 결합시키고, 단체책임에 관한 국제형법적 실정법화의 근거와 함께 법철학적인 단체책임개념의 구성을 도입하고, 암보스나 베스트가 추구한 록신이 제시한 조직지배이론의 발전적 전개를 도모하고자 한다. So far the term 'collective guilt' has been not well developed in the area of criminal law. However, the necessity to build the firm conception of collective guilt has been growing. After WW II German Professor Roxin has developed ‘Organisationsherrschaftslehre(Theory of organisational dominance)’. This theory has been recently adopted in Kataga Case by ICC and Fujimori Case in Peruan Supreme Court. Professor Roxin’s another theory of duty crime could be very useful in order to build the theory and practice of collective guilt. Beyond the theoretical approuches, recently with 9.11 disaster as a momentum, Professor Fletcher has developed the new concept of collective guilt. The first step in Fletcher's argument is to reveal what he perceives as the shortcomings of a liberal tradition embraced by most criminal law theorists. Finally he has developed a concept of the nation as a collective agent and as a potential bearer of guilt. The author tried to apply some implications of Roxin’s two theories and Fletcher's approach to the theory of collective guilt. We need to change from a point of individualistic view to a point of collectivistic view. This paper would like to contribute to the new theory of collective guilt in national criminal law as well as international criminal law.

3년제 보건계학과 현장실습의 효율적 운영방안

조경진,박영선,박지환,이병기,정순희 高麗大學校 倂設 保健大學 保健科學硏究所 1997 保建科學硏究論集 Vol.6 No.1

For the the enhancement of educational efficiency in on-site training of 3-year health college program, the authors perofrmed a survey. From the survey result the authors came to conclusions as follows, The duration of training in the health college programs should be extended as one year through the extension of length of study. Evaluations in training sites were thought to be unreasonable, and therefore the evaluation system should be improved or newly developed. Educators in colleges are also urged to participate in various workshops to catch the new theory and changing technologies. All health alleges should try to expand their experimental facilities and equipments. Securing suitable training places is very difficult for some colleges located in small cities. At this point the governmental meddling is keenly required to ease the situation. Each training place must prepare its own educational program on which the educators can execute schedules. Training fee is another intricate matter for both collegs and training places. Some criteria for the amount per trainee and proper paying methods should be suggested in the earliest time. Considering the highly sophisticated equipment and higher wages for the manpower within the laboratories and relevanat places, the education in managerial aspects should be included in the programs. To enhance the effiency in the trainings, the student's daily report should be practical one not formalistic, and opportunities to handle the sophisticated equipments should be given to the trainees, and paying the careful consideration to trainees would be desirable.

형벌과 과태료의 기능과 그 한계 : 과태료일반법의 필요성을 중심으로

조병선 청주대학교 학술연구소 2003 淸大學術論集 Vol.1 No.-

The legal question raised by Kwataeryo is whether a mere change of 'label', from criminal wrongdoing to regulatory wrongdoing, eliminates the need to extend to individuals prosecuted under them all the constitutional protections accord defendants in criminal trials. The difficulty in insuring a triumph of substance over from in this area lies in the definition of criminal wrongdoing as opposed to regulatory wrongdoing. This research will explore the various approaches to solving these legal issues, and in so doing, identify the key distinctions between criminal and regulatory wrongdoing. By focusing the purpose for the separate existence of criminal wrongful act and regulatory wrongful act, a workable test for descrimination between two forms from the German and American experience may be developed. Especially the German experience has become a worldwide Model for Regulatory Offense Law. Finally the author inquires into the function, operation and necessity of changing the Regulatory Offense Law in Korea and examines the doctrinal roots of traditional agency practice regarding the imposition of penalties in order to determine whether this practice is reasonable. This evaluation requires the examination and the comparison of foreign legal models.