국민소송의 도입에 관한 법적 쟁점의 검토

선정원(Jeong-Won Sun) 행정법이론실무학회 2006 행정법연구 Vol.- No.15

In the United States, The federal False Claims Act permits a person with knowledge of fraud against the United States Government as the "qui tam plaintiff', to file a lawsuit on behalf of the Government. When private individuals file an action under the FCA, it is brought in the government's name. If the action is successful, the qui tam plaintiff is rewarded with a percentage of the recovery. There is a heated controversy about the introduction of People's Action in Korea, which is similar to Qui Tam Action of the United States. Korean People's Action, which is studied by members of the National Assembly, would be broadly applicable to almost any situation where money of central government and central legal persons are involved. Objects and Categories of People's Action are general government expenditures, defense contracting, medicare fraud, education grants, and agriculture support programs etc. The greatest impact of People's Action maybe is in their deterrent effect. The qui tam lawsuits saved the Federal Government about $10 billion from 1986 to 1995 in the United States. Rules of people's action must be prescribed as a separate law, so that all central government and other central legal persons respect it more positively. By people's action, The Supreme Court would control public policies better than past, but it shouldn't reduce administrative discretion too narrow. Under this lawsuit system, I think that people must demand an administrative audit against illegal expenditure or illegal property management, before they file a people's action. By the administrative audit, administrative experiences and information can be used and excessive caseload of courts can be reduced. Asian financial crisis in 1997 gave our society deep impact. We must build more powerful financial control system, so that moral hazard can be prevented.

경찰행정법상 일반적 수권조항에 의한 경찰권 행사의 헌법적 한계

고헌환(Ko, Heon-Hwan) 한국토지공법학회 2010 土地公法硏究 Vol.49 No.-

경찰권 행사는 행정작용 중 가장 전형적인 권력적 행정작용으로 법치주의 원칙에 의하여 개별적 수권 조항에 근거를 두고 행하여야 함이 일반적이지만 개별적 수권 조항이 없는 경우, 다양한 사회현상의 변화에 따른 위해에 대응하기 위한 입법자의 인식 및 예측능력의 한계 등을 고려할 때 일반적 수권조항의 필요성이 요구된다. 하지만 우리의 경찰 행정법상에 있어서 일반적 수권조항을 명시적으로 두고 있지 않아 인정여부에 관한 논의가 전개되고 있다. 일반적 수권조항을 인정하는 것을 전제로 하여 경찰행정법상 일반적 수권조항인 “공공의 안녕과 질서 유지”를 위한 경찰권을 행사함에 있어서 경찰권을 일탈․남용하여 국민의 권리와 자유를 침해하는 경우가 있다. 여기에서 국민의 자유와 권리보호 그리고 공공의 안녕과 질서유지라는 경찰목적 사이에서 갈등을 초래하고 있기 때문에 이것을 어떻게 조정할 것인가 하는 경찰권 행사의 한계 문제가 대두된다. 따라서 본고에서는 경찰권 행사의 근거로써 일반적 수권조항의 인정여부에 관한 학설과 판례를 검토하고, 일반적 수권조항에 의한 경찰권 행사의 한계를 종래의 경찰행정법상 한계에서 벗어난 헌법상의 일반원리인 적법절차의 원칙, 평등의 원칙, 비례의 원칙에 의한 한계와 기본권 구속성에 의한 한계를 고찰하고자 하였다. As exerting police power is the most typical powerful administrative action, it must be generally held based on individual empowerment clause through constitutionalism, but when considering legislator's understanding and limit of ability to forecast to prepare for harm of various social phenomenon not having individual empowerment clause, general empowerment clause is needed. However, on police administration law, whether it is admitted or not is happening because general empowerment clause is not specified. since it is based on assumption that general empowerment clause is admitted, there are sometimes cases infringing the right of people and freedom by abusing police power and exerting police power for general empowerment clause, “keeping public peace and the order of society”, on police administration law. Because of causing a rift between the purposes of the police called the freedom of people, protection, public peace and the order of society, limit of exerting police power is issued how it will be mediated. Therefore, this thesis examines theories and precedents whether general empowerment clause is admitted or not as a basis of using police power and considers limit of proportional principle, the principle of equality and principle of legal step and restriction of natural right which is general principles under constitutional law being against the limit on existing police administration law.

미국에서 조세범죄에 대한 조사와 수사 -미국 국세청(Internal Revenue Service)의 역할과 기능을 중심으로-

지유미 ( Yu Mi Jee ) 홍익대학교 법학연구소 2014 홍익법학 Vol.15 No.3

This Article examines the administrative investigation by the Internal RevenueService(hereinafter IRS). Not only has the IRS civil audit enforced taxpayers``compliance with tax laws, but it has resulted in the IRS criminal tax investigation inmany cases. Since the IRS has been granted summons power in its civil audit, the IRSis able to compel a taxpayer to give testimony or produce document by seeking the courtorder enforcing compliance with the summons even when the taxpayer refuses to do so. Such IRS civil audit is one of the various routes from which the IRS becomes suspiciousof tax fraud. If a Revenue Agent, who has conducted the civil audit, discovers anindication of tax fraud, then the audit should be suspended, and the case should betransferred to the Office of Criminal Investigation for the IRS criminal tax investigation. Since then, a Special Agent of the Office starts conducting the criminal tax investigationto obtain evidence for a criminal proceeding. One of the traditional methods of thecriminal tax investigation is to interview the taxpayer or witnesses. After the criminaltax investigation by the Special Agent completed, the IRS usually recommends a grandjury investigation or criminal prosecution of the taxpayer. One of the most critical issues here is if the taxpayer``s constitutional rights would beviolated by such IRS administrative investigation, because both the civil audit and the criminal tax investigation is conducted by the IRS, and the criminal investigationbecomes a basis for the criminal prosecution of the taxpayer. First, a taxpayer wouldbe able to argue that a Revenue Agent``s civil audit constitutes unreasonable search inviolation of the 4th Amendment to the U.S. Constitution when the taxpayer gavetestimony or produced his or her books, records, etc. to the agent who kept conductingthe civil audit even after discovering the firm indication of tax fraud. In this case,whether the taxpayer``s constitutional rights are violated depends on whether the agentactually discovered the firm indication of tax fraud, which should be distinguished fromthe first indication of such fraud. Secondly, a taxpayer, who is faced with the IRS``sexercising its summons power, may refuse to comply with the summons by asserting theprivilege against self-incrimination of the 5th Amendment to the U.S. Constitution. Federal district court would determine whether its order enforcing compliance with thesummons should be made, depending on if it should be allowed for the taxpayer toexercise his or her privilege. Finally, it is rare for the testimony given or the documentproduced by the taxpayer in the IRS criminal tax investigation to become inadmissibleunder the Miranda rule, in that such investigation does not constitute a custodialinterrogation. However, the Internal Revenue Manual requires the Special Agent to giveadministrative warnings to a taxpayer even when the Miranda rule is not applicable. The federal circuit courts have split over whether the agent``s failing to give suchwarnings to the taxpayer violates the taxpayer``s constitutional rights or not.