행정법상 수개의 위반행위 등에 대한 처분기준

황창근 홍익대학교 법학연구소 2018 홍익법학 Vol.19 No.4

Disposal relationships where there are several violations or where one offence falls under several laws under administrative law are partially defined by "Act on Regulation of Violations of the public Order" and individual laws. However, the "Act on Regulation of Violations of the public Order" defines only the treatment relationship between violation of public order and violation of public order. However, the relationship between handling a number of violations, as defined by the same law, can serve as a reference to establishing a number of violations in the administration. In addition, the treatment relationships prescribed by the individual Act have limitations in their own right because they have an effect within the Act, while the treatment relationships taken by each individual law do not have uniformity or coherence and it is necessary to organize the standards to apply in common. However, considering the nature of administrative law relations, it should be avoided to borrow the theory of numbering crimes under criminal law. Therefore, I would like to make some legislative proposals. First, a process for identifying the existence of other offences should be established, Second, we need to create a unified basis for dealing with crimes of conceptual concurrence. Third, in dealing with the essential concurrent offenses, we use the principle of concurrent processing in the same law. Fourth, when several acts have been performed in an indistinguishably consecutive manner, comprehensive disposition is introduced for one action. Fifth, we need to discuss the order of disposal. Finally, it is appropriate to prescribe such legislation as matters related to the disposition of the Administrative Procedure Act. 행정법상 수개의 위반행위가 있는 경우 또는 하나의 위반행위가 수개의 법규에 해당되는 경우의 처리관계에 대하여는 「질서위반행위규제법」과 개별법이 일부 규정하고 있다. 그러나 「질서위반행위규제법」은 질서위반행위의 처리관계만을 규정하고 있는 것인만큼 그 법률상 한계가 분명하다. 다만 동법이 규정하고 있는 수개의 위반행위의 처리관계는 행정상 수개의 위반행위 처리관계 설정에 참고가 될 만하다. 또한 개별법이 규정하고 있는 처리관계는 해당 법률 내에서는 효력을 가지는 것이므로 그 자체로 한계를 가지고 있으며, 한편으로는 각 개별법이 취하고 있는 처리관계가 통일성이나 정합성을 띠고 있지 아니하여 공통적으로 적용할 기준을 정리하는 것이 필요하다. 다만 행정법관계의 특성을 고려할 때 형사법상의 죄수론을 그대로 차용하는 것은 지양하여야 한다. 형사법과 행정법상 과벌체계의 본질과 내용이 크게 다르기 때문이다. 따라서 몇 가지 입법적 제안을 하고자 한다. 첫째 다른 위반행위의 존재 확인을 위한 절차를 신설하여야 하고, 둘째 상상적 경합관계의 처리를 위한 통합적인 근거를 신설하여야 한다. 셋째 실체적 경합관계의 처리에 있어서는 동시처리의 원칙, 동일한 법률내에서는 흡수주의 등 다양한 방식을 혼용하고, 넷째 하나의 동일한 법익에 대하여 수개의 행위가 불가분적으로 연속하여 행하여진 경우에는 하나의 처분을 하는 포괄적 처분의 법리를 도입하며, 다섯째 처리순서에 대한 논의의 필요성 등이다. 마지막으로 이러한 입법은 행정절차법의 처분 관련 사항으로 규정하는 것이 타당하다.

방북 한국인의 신변안전 및 인권보호 강화문제

제성호 중앙법학회 2008 中央法學 Vol.10 No.3

A female South Korean tourist visiting Mt. Geumgang and taking a walk peacefully around the tourism site was shot and killed by a North Korean soldier back in June 2008. Now this shooting incident not only has become a major cause of deadlock between the South and the North, but also offers an opportunity to discuss again effective measures for securing personal safety of South Koreans visiting North Korea and protecting their human rights. In short, we should persuade North Korea into making a provision in the relevant laws to the effect that soldiers should not shoot or murder any unarmed civilians in the tourism area near the Korean Demilitarized Zone(DMZ). In case North Korean laws and regulations are violated by a South Korean visitor, we should have a right to investigate the facts in order that proper responsible actions may be followed by the authorities concerned of North Korea. In particular, we should specify what "severe violation of laws and regulations" are in the application of the Inter-Korean Agreement on Immigration Control and Stay in North Korea. Organizing a South-North Joint Committee will be a necessary to accomplish these tasks. In addition, when North Korea investigate alleged violations of its laws and regulations perpetrated by South Koreans, the South Korean government should work out their human rights protection strengthening measures. A female South Korean tourist visiting Mt. Geumgang and taking a walk peacefully around the tourism site was shot and killed by a North Korean soldier back in June 2008. Now this shooting incident not only has become a major cause of deadlock between the South and the North, but also offers an opportunity to discuss again effective measures for securing personal safety of South Koreans visiting North Korea and protecting their human rights. In short, we should persuade North Korea into making a provision in the relevant laws to the effect that soldiers should not shoot or murder any unarmed civilians in the tourism area near the Korean Demilitarized Zone(DMZ). In case North Korean laws and regulations are violated by a South Korean visitor, we should have a right to investigate the facts in order that proper responsible actions may be followed by the authorities concerned of North Korea. In particular, we should specify what "severe violation of laws and regulations" are in the application of the Inter-Korean Agreement on Immigration Control and Stay in North Korea. Organizing a South-North Joint Committee will be a necessary to accomplish these tasks. In addition, when North Korea investigate alleged violations of its laws and regulations perpetrated by South Koreans, the South Korean government should work out their human rights protection strengthening measures.

교통법규위반에 대한 과태료 체납 징수방안에 관한 법적 검토

김원중 ( Kim Won-jung ) 한국도로교통공단 2014 교통안전연구 Vol.33 No.-

There are various fines such like illegal parking & stopping, speed violation, traffic signal violation and traffic lane violation against the people who violates traffic orders. Among them, speed violation, traffic signal violation and traffic lane violation are unearthed by mechanical control, not by personal control. Imposing a penalty to a violator is based on Road Traffic Law, but it becomes to turn into a fine in the case that the violator is not clear. In a case of an unmanned monitoring camera a driver violating regulations is regarded as an owner of the car, so a penalty is imposed to him (the owner of the car). When he does not pay the penalty within a due date, however, the penalty comes to turn to a fine which is imposed to the owner of the car. It is because that it is not evident if the owner of the car is the same person who violated regulations. Considering the case above, it needs to keep an equity for the people breaking traffic regulations in order to cut down the amount of an unpaid fine and improve the rate of the payment. In addition, as a method of punishment for breaching regulations, penalty and fine ought to have the same functions that are needed to control any violation of the law. Currently, imposing and collecting a fine do not maintain the equity of the law against violators, nor restricting violation of the law. Present methods of punishment for not keeping regulations are divided in the two; penalty and fine, result in limiting the equity of the law. Thus, this study suggests ideas of developing the functions of a fine imposed by an unmanned camera and raising the rate of its payment.

개정양벌규정에서의 기업의 형사책임

조병선(Byung-Sun Cho) 한국형사정책학회 2009 刑事政策 Vol.21 No.1

In Korean there is in general the possibilty of corporate criminalliability persuant to ‘joint penal provision (two-sides penal provision)’. Recently in November 2007, the Korean Constiutional Court held that a joint penal provision in which the individual employer is punished when his or her employee is determined to have committed a crime was unconstitutional, because the joint penal provision had no contents for the culpability of an individual employer and thus violated the constitutionally protected principle of culpability. Therefore, it is today impossible to try to explain ‘joint penal provision’ with using the idea of vicarious liability. After the Korean Constitutional Court’s expression of the unconsitutionality over joint penal provision in November 2007, since December 2008 the Ministry of Justice began to change the old joint penal provision into the new revised joint penal provision. On 26 December 2008, the old joint penal provisions of 69 laws were revised. The new revised jointpenal provision adds only an additional sentence: "If a juristic person, an entity or an individual perform due care and supervison over its employee for the prevention of such a crime, it will be exempted from the punishment". The new rivised joint penalprovision seems to declair that the criminal liability of employer is based on the presumption of negligence, because the inserted sentence means the presumption of negligence. Probably the new form of penal provision, that is understood to be a kind of the presumption of negligence, could let the burden of proof be changed from the public prosecutor to the accused, in other words employer-side. My paper raises the question of how we could determine who is perpetrator in an organizational hierachy, and how we should restrict the number of individuals whose actions may trigger the corporation's liability. A dicision of the Korean Supreme Court provides a useful example for such difficulties. The Supreme Court justified the punishment of two-sides with the following explanation: When the actor is a representative, his acts are presumed to be the conducts of a corporation itself and thus a corporation has to be punished. When the actor is not a representative, his conduct cannot be presumed to be the conduct of a corporation. However, when the actor who is not a representative violates a law, he should be still ‘additionally’ punishedbesides a corporation persuant to joint penal provision. Therefore, the punishment of a representative means the ‘expansion’of punishment that is based on the joint penal provision. When the actor is not a representative, the actor is punished because of his own criminal conduct and a corporation is fined because of its negligence of the supervisional duty. At first glance, the argument of the Supreme Court seems to be sufficient for those cases. However, this argument has a premise that it is not difficult to find an actor. The fine against a corporation is usually not sufficient to deter corporate misbehavior. The orientation of this way of thinking lies merely in an individual (natural person) from the naturalistic point of view. Recent Korean courts’ precedents have affirmed the possibility of co-perpertrator based on negligence. The Korean Supreme Court stated in the case of Seongsu Bridge Accident that criminal liability of several perpetrators could be based on joint previous omission of ‘direct and concrete’ due care as long as the casual nexus was given. In this case the Korean Supreme Court accepted the concept of ‘negligent co-perpetrator’, as long as there exist two important premises: the joint previous omission of ‘direct and concrete’ due care and the casual nexus. However, corporate criminal liability pursuant to joint penal provision is quite different from typical criminal negligence. We need to change from a point of individualistic view to a point of collectivistic view. Because a criminal corporate attitude w