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2009, Vol., No.43

  • 1.

    The Constitutional Issues of Same-Sex Marriage

    Kim, Byeong-Rok | 2009, (43) | pp.1~27 | number of Cited : 12
    To define family and to see them at a certain point of view is a very important matter. This is because the definition of family has an important meaning both socially and individually. Due to sexual orientation, same sex couples cannot be admissioned in the institution of marriage and family where they can be guaranteed constitutionally. The direction of the protection for same sex couples and the direction of the perception towards same sex marriage should be formed as the following paths. First, their fundamental rights should be guaranteed. In every living area including same sex couples, discriminative treatment is forbidden. Sexual orientation cannot be the standard for discrimination and for that reason, if there is any case of discriminative measures that would be disobeying equal rights which is appointing the fundamental rights' direction. In the living area not only equal treatment should be guaranteed but also the liberty of sexual determination and privacy should be guaranteed. In addition, same sex couples' protection through legal institution is required. Both fundamental rights and legal institution's security is interactively supplied. As objective valued system, same sex couples' fundamental rights require them to be drawn into the constitutional system through the formation of legal institution. The arrangement of a new system for same sex couples is not demolishing the existing constitutional order. The formation of legal institution for same sex couples should respect the characteristic aspect which can guarantee interactive honesty or responsibility and should consider property contract or the succession of rights for community space, financial support and responsibility after the settlement of same sex relations and inheritance. Therefore like different sex couples, same sex couples should open the possibility of forming a similar community with family.
  • 2.

    On the Study of a Closed Information by the Law in the Freedom of Information Act

    Park Jinwoo | 2009, (43) | pp.29~56 | number of Cited : 21
    The development of the information-oriented society and the monopolized situation of the mass media in present have brought about a new change in the freedom of the expression. While the traditional freedom of the expression have laid an emphasis on the freedom of the speaker, the range of the freedom of the expression in today leads to the freedom of the listener as well as the freedom of the speaker. the tendency of secrecy in the national levels has gotten worse and the unilateral system of communication has evolved into the diverse and complex system of communication and thus the right to know have come to the constitutional right. The right to know becomes the constitutional right on the ground that the people as a sovereign should know the information about the affairs of a state in reason and could collect and request the information. The system of the freedom of information is supporting to this request. Korea made a law of the freedom of information and have made application of the system of the freedom of information making the release of the information owning to the government. all the information in the freedom of information Act should be open in general. Some information nevertheless should not be open in a case. The freedom of information Act enacts a closed information. A closed information provided by other laws in the freedom of information Act raises several points in relation to The public record management Act. In order to realize the open principle of information, a precise and reasonal rule should be prepared in the public record management Act.
  • 3.

    The Signifié of Culpability in Criminal Law

    송희식 | 2009, (43) | pp.57~85 | number of Cited : 0
    The purpose of this study is to examine the culpability conception in criminal law with the linguistic analysis tools. The concept of culpability has been debated by many criminal law theory researchers during the last century in Germany. This study reviewed the history of culpability concept studies in German and groped for new culpability theory with criticism from linguistic and philosophical analysis. A linguistic sign is link between meaning and its sound pattern. The sound pattern is the hearer's psychological impression of a sound. We call it as ‘signifiant’ as Ferdinand de Saussure did. The meaning of a linguistic sign is called as ‘signifié’ in Franch word. As Saussre mentioned the link between signifiant and signifié is arbitrary. So there is no one common signifié matching to a signifiant used in all context. There at most is a family resemblance (Familienänlichkeiten) in all signifié of one siginfiant in all contexts. It is presumed that there is a unique distinctive feature in signifié of jurisprudential siginfiant. It is assumed that all signifié presupposes a case, controversy, criminal case, and others. So we call jurisprudential signifié as case signifié. The case signifié of jurisprudential siginfiant has semantic structure: Case signifié has structural meaning, there is the subject of story as the subject of a sentence, there is the subject of enunciation as speaker of sentences, there are behavior, objects, results, and others. In long history of the studies of culpability concepts, there was fallacy of essentialism in the belief that culpability is a real substance. Culpability was regarded as psychological substance such as intent, knowing, recklessness, negligence. After a while of periods, culpability was regarded as normative valuation-itself, such as blameworthiness, the possibility of expectation, the possibility to do lawful action. Since the preventive jurisprudence is prevailing, it regards culpability as special and general prevention. The case signifié of culpability as jurisprudential siginfiant has two sides. One is expectation of the subject of enunciation. The other side of that is acceptability of the subject of story. The synthesis of those two sides is blameworthiness of normative culpability theory. But the difference of our view from that theory is case signifié having semantic structure.
  • 4.

    Studien über die Gesetzgebung der Regelung des KorStGB §16 Verbotsirrtums

    천진호 | 2009, (43) | pp.87~109 | number of Cited : 3
    Der Verbotsirrtum bedeutet die Fälle, in denen der Täter trotz dem Kenntnis des Tatbestandssachverhalts irrtümlich das Verbot oder Gebot seiner Tat nicht weiß, also der Täter weiß, was er tut, nimmt aber irrig an, es sei erlaubt und dann er führt zur Verwirklichung der Tatbestandes ohne Bewußtsein, daß er Unrecht tut. Ein Verbotsirrtum ist es, daß es an Bewußtsein über die Rechtswidrigkeit oder Unrechtsbewußtsein als Kernstück des Schuldvorwurfs fehlt. So muß es in dogmatischer Diskussion bezüglich auf KorStGB §16 zum ersten darum betrachtet werden, daß ob es dem Täter zur Zeit der Tat Unrechtsbewußtsein gibt, sodann kannte der Täter durch Irrtum das nicht, seine Tat verbietet war, dann handelt es sich um Problem darüber, daß gibt es den gerechten Grund für seines Mißverständnis? Schließlich geht es um Urteil deren nachfolgenden Rechtfolgen nach Vorliegen oder Fehlen des gerechten Grunds. Wenn der gerechte Grund im KorStGB §16 die Fälle, in denen der Täter den Irrtum nicht vermeiden kann, konkrete bedeutet, so kann die Lehre und Rechtsprechung über die Beurteilungsmaßstäbe der Vermeidbarkeit im deutshe StGB §17 für die Auslegung des gerechten Grunds nützlich werden. Ein Kommentar und eine Gesetzgebung müssen aufgrund der sich gegenseitig ergänzenden Beziehung auf der theoretischen Grundlage basieren. Es ist unlogisch, ohne die theoretischen Grundlage eine Interpretation nach der formellen Regelung zu bestehen. Der Verbotsirrtum miteinbegriffen das Nichtkennen ist nicht wissen das Gesetz über die Handlumg, sondern Irrtum über die Rechtswidrigkeit. Deshalb ‘durch das Gesetz’ streiche in KorStGB § 16 aus, als Vertreter Verbotsirrtum ist ‘Wer bei Begehung der Tat nicht weiss und nicht wissen kann, dass er sich rechtswidrig verhält’ sich verbessern. Und der gerechte Grund im KorStGB §16, der ist nachträglicher‧normativer Maßstab über die Rechtswidrigkeit oder Unrecht seiner Tat, ist nicht der hinreichende Grund in dem Maßstab über den Rechtswidrigkeitsausschließungsgrund. Deshalb KorStGB § 16 ist sich folgende Darstellung verbessern, daß “Wer die Rechtswidrigkeit der Tat wegen das Nichtkennen oder Mißkennen nicht erkennt, nicht bestraft werden, wenn ihm der gerechte Grund ist, so mildert das Gericht die Strafe”
  • 5.

    Requisites and Effects of Mistake of Law

    Lee, Chang-Sup | 2009, (43) | pp.111~134 | number of Cited : 1
    According to Article 16 of the Korean Criminal Code, a person who committed a crime in mistake of law shall not be punishable only when his mistake is based on reasonable grounds. Mistake of law is recognized when a doer commits a crime without the awareness of his act's illegality. Here it is proper that the illegality in Article 16 should be understood as a violation of the criminal law. And mistake of law in Article 16 includes ignorance of law. It is supported by legislator's intentions. And reasonable grounds in Article 16 mean that a doer had not a possibility of avoidance of falling into mistake of law. Criterion of reasonable grounds is equal to that of negligence. Lastly, ‘a person … shall not be punishable’ in Article 16 means that he is not guilty.
  • 6.

    Permission and Its Limitations of Investigational Compulsory Urine Sampling

    Shin, yi Chul | 2009, (43) | pp.135~159 | number of Cited : 4
    In view of latest tendency to gradually increasing number of narcotic crimes day by day in reality, it is undeniable that we have more needs for scientific tests to prevent such crimes than before. So, blind denial of compulsory urine sampling for criminal investigation is not necessarily advisable even from the standpoint of discovering substantial truth. On the one hand, however, the discovery of substantial truth may be the ultimate goal, not the only goal, so it should be subject to appropriate legitimate procedures. Thus, simple a chemical analysis on hair is often helpful to justify evidence for in vivo existence of narcotics, apart from urine analysis. But unless there are reliable and epoch-making estimation techniques discovered and developed to perform considerable analysis just in the above methodology, it seems difficult to entirely reject compulsory urine sampling that is subject to very demanding requirements and procedural standards, as described above. And on the other hand, it is necessary to prevent investigational parties from their abuse or misuse of compulsory urine sampling by rejecting any evidential power of proofs obtained from compulsory urine sampling in violation of these requirements and procedures. Ultimately, it is important to pursue a legislative compromise in favor of harmonization between two conflicting doctrines, i.e. achieving investigational goals and protecting human rights. According to analytic theory of current criminal laws, it is possibly appropriate and advisable that these characteristics of scientific investigation means should be individually identified to determine whether the investigation is voluntary or compulsory, and if it is compulsory, it should be regulated under one or more rules of restriction, seizure and investigation, and verification as a part of compulsory investigation means stipulated in current criminal laws. But ultimately, it is required to legislatively delineate these scientific investigation means and provide formulated regulations over strict permission standards and procedures, so that they can be encompassed to the highest extent as possible within statutory framework.
  • 7.

    A Legislative Alternative for Spouse-Violation Victim's Protection

    Kim yonghua | 2009, (43) | pp.161~191 | number of Cited : 3
    A family based on a heterosexual marriage and blood ties is generally considered as a standard unit of a community. The Family system, one of the oldest, most universal institutions of human history, has been shaping its unique cultures as a means of settling biological instincts, interchanging mutual sympathy, reproducing and parenting based on the affection among its members, while accommodating social changes. The system however, doesn't have only positive and constructive aspects as stated above. It also has negative aspects such as occasional or continuos physical(including sexual abuses) and psychological violences invoked by conflicts among family members(especially between spouses). The penalty for these violences in real life, unfortunately, has been relatively light even though it goes beyond the limits. It's because not only the harmers but also the state recognize the violations not as crimes but as matters of simple household affairs. The laws has been hesitant in punishing the spouse outragers otherwise it may not have as to the violences between strangers. It hasn't been challenged until recently even though the violences committed by spouses has been repeated conventionally. Especially, wives, in all ages and countries, has been composing a large portion of the victims exposed to long standing abuses from their husbands, ending up on a suicide or a murderee or a murder(of their spouses). These ritual spouse-abuses have been reinforced by sociocultural criterions and traditions based on patriarchal system, and through which sexual discriminations and economical inequalities can be sustained. Furthermore as is often the case, there have been frequent occasions when the incidences of violations have been suppressed or reduced because both of the victims and harmers would like to cover up the reality. This research, therefore, will try to review the current legal system for protecting spouse violation's victims to see if there are rooms for controversies, finally to study out a legislative alternative for spouse violences.
  • 8.

    A Critical Study on the Punishment of Sex Trade and the John School Diversion Program Policy

    Deokin Lee | 2009, (43) | pp.193~219 | number of Cited : 15
    Nowadays, the will to eradicate the sex trade from the society succeeded in tying the sexual abuses and immoral paid sex relationships in a category without a social consensus enough to condemn them as crimes. However, immorality does not have anything to do with the punishment. It is not proper to use the punishment as a method to force the morality in modern society where immorality of the punishment is being discussed. Additionally, unlike the positive evaluation that the demand and the supply are regulated through Anti-sex-trade Act, in real life the social effectuality of the raw is being reduced and the regulations and restrictions become symbolized. Additionally, forcing methods to prevent sex trade are peculiar and abnormal. They brought so called ‘John School’ across the Pacific Ocean to improve sex ethics and sex moral considering all the males on this land being suspected as prospect criminals as well as the actual criminals who have purchased sex. However, if we look into the initial background of the introduction of Prevention of Recurrence of Sex Purchase, the reasons why they brought it in Korea and how they brought it in to Korea, it is confirmed that they brought this scheme with haste without understanding the situations in Korea. It is not a surprise this education became a group seminar limited as a criminal rehabilitation training. The problems of this program are easily guessed when we see the restrictions of the educational contents and the effects of the education. A voluntary paid sex relationship is not a crime at all. Of course it is neither legal nor proud even it does not constitute a crime. Therefore we need to leave it to the social ethics area how to discuss, reflect and find the solutions of the serious absurdities such as the problems arising from the immorality of this behavior, relationship between men and women and the contradictions of the social structure.
  • 9.

    Reconsideration of the Comparative Method in Legal Systems

    Woongkil Han | 2009, (43) | pp.221~242 | number of Cited : 0
    In Korea, the comparative jurisprudence was emphasized to find a good model from foreign country, especially Europe or America. The Effort for learning advanced legal systems is very splendid thing for making good laws in Korea. But it is not desirable only to learn foreign legal systems one-sidedly in the future. Because it means either a shameful thing(=we have nothing good to teach another countries) or a foolish thing(=we must pay great money in order to import foreign legal culture always). I want to propose comparative method to teach(export) Korean legal system to foreign countries. It is necessary work for successful education of foreign students in Dong A University and Dong A Graduate School to reconsiderate the comparative method in legal systems. The object of comparative study are two institutions. One is regulation of standardized contract. It(=regulation of an unfair agreement) is very different in regulative formality, but similar in regurated contents among China, Japan and Korea. Another is creditor's right of revocation. It is very similar in regulative formality, but different in regurated contents among China, Japan and Korea. Especially Korean Civil Law reform (2007.12.21) make creditor in future go to the court, a basis on claim for division of property before divorce(Article 3 of the 839th Korean Civil Code). I presented my opinion about this Article.
  • 10.

    Legal Problems of Warranty against Defects in Aggregate Residential Building

    BYUN WOOJOO | 2009, (43) | pp.243~267 | number of Cited : 16
    The Aggregate residential buildings and collective residential buildings such as apartments consist of large percentage of the types of housing that exist in Korea. Since aggregate residential buildings and collective residential buildings are similar and partially overlap with one another, many questions have been raised as to whether administration of such properties are governed under the Housing Act or the Ownership and Management of Aggregate Residential Building Act. So this study presented the present situation and Legal Problems of warranty against defects in Aggregate residential building under the Act on The Ownership and Management of Aggregate buildings and the Housing Act. The Housing Act has provisions governing warranty and repairs against structural defects to be provided for by the company that constructed the residential building, but this Act has no provisions concerning the warranty for structural defects that the Committee of dwellers representatives dominion over. Therefore, to secure effectiveness on warranty for structural defects of the Aggregate residential building, I'd investigate about legal position of the Committee of dwellers representatives, and criticize attitude of recent precedent. Also, depending on a judicial precedent, It is necessary to amend the housing act to achieve harmony with the Civil Law.
  • 11.

    A Study on Professional Degree or License as an Object to be Claimed for Division of Property in Case of Divorce

    Bu-Chan Yoon | 2009, (43) | pp.269~296 | number of Cited : 4
    In 1990, the right of claims for the division of property on divorce between spouses, is stipulated into Article 839-2 of the Korean Civil Code. This Article provides as follows; (1) One of the parties who gets a divorce by agreement, may claim for division of property against the other party. (2) If no agreement is made for division of property as referred to in paragraph (1), or if it is impossible to reach an agreement, the Family Court shall, upon request of the parties, determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances. To serve its purpose substantially, proportions as well as properties formed during marriage should be divided, however the Article is too concise to be perfect, it would be found that immoderate discretion is leaved to the court especially regarding the methods of their valuation in the procedure of divorce. The Supreme Court held that professional degree is not a property right to be divided in the divorce proceeding owing to its attribute. In one case, the Supreme Court ruled that husband's Doctor Degree is to be just a factor of consideration in the divorce proceeding to divide the marital properties. This paper points out that the object which has to be divided in the procedure of divorce is not the one spouse's professional degree or license itself but the increased earning capability formed by spouses joint contribution during their marriage. In my humble opinion, one spouse's increased future earning capability does not fall under the category of personal attribute, but an income-generating intangible asset. One can sell, even in advance, the proportion of the future earning capability as long as it is possible to determine the proportion. Although the valuation of the future earning capacity is not that simple, that is not be a proper reason to exclude one spouse's increased future earning capability from marital properties.
  • 12.

    The Division of Property through Analyzing Lower Court Cases

    Lee Hye Jin | 2009, (43) | pp.297~328 | number of Cited : 5
    It has been 18 years since the revised Civil Law containing the Division of Property System came into effect. As living in the course of marriage means to live together, it is not a significant problem who has the title of assets. But with the divorce it need to divide assets acquired during their marriage in proportion to contribution. So a party of a married couple can claim for division of property against another party. We call it the Division of Property System(hereinafter “the System”). The System has contributed to protect a spouse(especially wife) who did not have an economic ability, and to realize an equity through substantial adjustment when they got a divorce. But due to indefiniteness of the clauses concerned, there revealed many problems to interpret and apply the System in spite of its importance in domestic cases. In fact, considerable disparity about objects, process and ratio of division occurs by lower court judge's discretion. Therefore, a prediction, a balance of the application of laws are disturbed, which causes distrust of courts. So this article tries to analyze concretely the Object and Ratio of Division in real cases(in particular lower court cases) to which the litigants pay all attention, without treating theoretical problems such as legal characteristics and requisites of the Claim for Division of Property.
  • 13.

    The Role of the Intent of the Husband in Case of Deciding Paternity of a Child Born through the A.I.D.

    Jaemoon Kwon | 2009, (43) | pp.329~359 | number of Cited : 15
    We live in an era in which DNA testing enables definitive proof of the existence of genetic links between an adult and a child. Under this situation we need to decide whether the law should place greater emphasis on biology than it has previously in defining parentage. But in case of a child born through ART(especially AID) it is hard to get a plausible answer tho this question : between the so-called "biological father" who has genetic relation with the child and the so-called "intended father" who has agreed to exercise of the ART, who is to decided as a legal father? On this question there has developed two confliction arguments in Korean as in many other countries such as U.S.A, U.K, Germany, and Japan. In searching for a clue to assign the status of paternity we should not overlook such fundamenal rules as the best interst of child, the stability of family relations, and human rights of everyone concerned especially of the intent father and gamete donor. Considering these principles, it is problematic to grant the intent father as the only legal father without any test as to whether he is adequate to realize the fundamenta rules that is mentioned above. It is possible that someone who is not genetically related to a child can be the legal father of it, but it shound not lead to the absurdity that anyone can be granted the status of paternity only because he want to be.
  • 14.

  • 15.

    An Analysis on the Nature and Function of the International Rule of Law

    TAE HYUN CHOI | 2009, (43) | pp.391~425 | number of Cited : 11
    The international rule of law consists of a particular set of values and principles associated with the idea of international legality. It is a universal concept for all nations, also an effective means for establishing and maintaining the integrity of international legal order, promoting and achieving international justice and progressing and facilitating international legislation. At the international level the idea of international rule of law operates as a means rather than an end in itself and serves a function rather than defines a status. Essentially, the rule of law in the international arena constrains the government of a State not in the way that domestic law constrains an individual, but in the way that domestic law constrains a lawmaker. Governments are bound in the international arena, as in any arena, to show themselves devoted to the principle of legality in all of their dealings. They are not to think in terms of a sphere of executive discretion where they can act unconstrained and lawlessly. When government lawyers advise their government on the matters of international law they should keep in mind that their legal advice given to the government should not be grudging about legality, treating the international rule of law as an inconvenience. They should not be advising that their government is entitled to avoid the impact of legal constraint where it is ambiguous or unclear. Their legal advice should be given in a spirit that embraces the importance of the international legal order and the obligatory character of its provisions.
  • 16.

    The Legal Status of Islands under LOS Convention and Dok-do

    Lee, Hwan Gyu | 2009, (43) | pp.427~448 | number of Cited : 6
    Paragraph 3 of Article 121 of the United Nations Convention on the Law of the Sea(LOS Convention) limits the legal entitlement of islands to maritime spaces by providing that : ‘Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf’. but the meaning of ‘rocks’ and the qualifying phrase that they cannot sustain human habitation or economic life of their own is not further defined in the LOS Convention. The inability to precisely define them raises additional questions. The following questions should be considered : What constitutes a ‘rock’ as a form of an island? ; and, what is meant by cannot sustain human habitation or economic life of their own? This paper will keek to give an overview of islands and the capacity of islands to generate maritime zones. Then, this paper suggest what ‘economic life of their own’ and ‘human habitation’ mean. Finally on the basis of discussion above, it is demonstrated that Dok-do is rocks which shall have exclusive economic zone or continental shelf.
  • 17.

    Legal Status of Stateless North Korean Refugees

    Bok-Hee Chang | 2009, (43) | pp.449~476 | number of Cited : 4
    North Korean second generation stateless children create another tragedy during the decade escaping from North Korea situations. Also stateless North Korean refugees who were born and grew up in North Korea from Chinese native lie in the blind spot of human rights due to insufficient legal protection and support Simply not having citizenship due to religion, culture and language with a different reason, without considering an individual's ability, personality, the contribution, discrimination are illegal based on the principle of non-indiscrimination. Regardless of nationality, basic rights, fundamental freedom and the right to be treated as a person before the law should be assured any cases. In the future we will want world security and coexistence of the individual, minorities, minonities including stateless persons should be protected by a common approach to universal human rights standards, and we will have to prepare to take reciprocity policy between nations. Protection of stateless persons with compliance to international legal human rights standards, contracting a bilateral treaty with nationality country of the foreigner, national implementation of the Convention relating to the Status of Stateless, ratification and the sign up the Convention on the Reduction of Statelessness, and appling universal human rights standards, can emanate the effect of national law and extreme policies can be eased. Creative appling international human rights law can enforce the status of refugee, asylum seekers and stateless persons. This must be based on the need of international protection rather than international legal obligations. Protection as the core of human rights, is completed from the principle of non-refoulement and guarantee of right to asylum proclaimed in Universal Declaration of Human Rights. In fact legal arrangements to the stateless North Korean refugees are not clear, easing requirements for naturalization as to de facto North Korean, recognizing a citizen of Republic of Korea through professional substantive review, determining as refugees, appling complementary protection under the existing international human rights law, granting status of stateless persons under the Convention relating to the Status of Refugees, treatment according to international standards, implementation, revision of relevant domestic law and alternative policies should be taken.
  • 18.

    Research on the Key Issues in International Investment Disputes Shown in the Cases Arbitrated by ICSID Recent Five Years

    Kim, Yong Eui | 2009, (43) | pp.477~508 | number of Cited : 4
    Along with the increasing amount of foreign investment made global-wide, the disputes therefrom are also increasing. In 2007only, at least 35 new investor-State cases were filed under international investment agreements, 27 of which were filed with the International Centre for Settlement of Investment Disputes (ICSID). This treatise concentrates on the concept of “investment”" for purposes of establishing jurisdiction under Article 25 of the ICSID Convention. In other words it specially studies the 'concept of investment' as one of the essential factors to be considered in deciding the jurisdictional issues. In addition to that study, this treatise also dealt with a special case where the jurisdictional rules and substantive rules were applied simultaneously to the jurisdiction issue in the same case. This study shows different approaches ICSID tribunals have had taken in the cases they decided so far and tried to find a general or consistent principle in deciding the concept of investment in terms of ICSID convention. This study is intended to give a practical guide to the investors and the legal practitioners representing them in structuring their investment projects and setting up contractual provisions in the investment agreements between the investors and the foreign countries who are the parties to the agreements.
  • 19.

  • 20.

    Criminal Procedure Code of the 2007 Revision on Admissibility of Interrogation Videotape

    Sang-Je Cho | 2009, (43) | pp.537~557 | number of Cited : 7
    In the 2007, Criminal Procedure Code was amended on a large scale. In the 2007 revision, importation of interrogation videotaping system will give rise to great confusion in a controversy on admissibility of the interrogation dossier. Prosecution's insistence regarding the evidential power of the videotapes recorded during interrogation is contradictory to the “Excluding Rule of Hearsay”. Because the intrinsic attribute of interrogation videotapes is a hearsay evidence to the last. Consequently it is desirable that the videotapes may be used only as the supporting evidence to refresh the memory of a suspect or a witness and as when it is necessary to support the circumstantial legality during interrogation.
  • 21.

    Analyzing Functions of an Empirical Study on Reformation of Interrogation Procedure in Investigation

    Fan, Chong-Yi | Changjun Jin | 2009, (43) | pp.559~575 | number of Cited : 0
    An empirical study on reformation of interrogation procedure in investigation is propitious to impel interrogation procedure in investigation to standardization and justification. The direct function of an empirical study on reformation of interrogation procedure in investigation is to keep extorting a confession by torture within limits, strengthen safeguarding rights of the interrogated and restrain withdrawing a confession, to improve criminal procedural efficiency. An empirical study on reformation of interrogation procedure in investigation also has indirect functions like changing the method of criminal proof from oral confession in chief to physical evidence in chief. In addition, empirical study possesses methodology meanings of overthrowing the studying habits of analyzing in criminal procedure.
  • 22.

    The Prevention and Control of the Torture of Suspects in Investigation Procedures

    HOH ILTAE | 2009, (43) | pp.577~597 | number of Cited : 1
    It has been over 20 years now since Park, Jong-Chul, who was recalled due to the quality of his reference, died from water torture in 1987. We could say that the police’s or the prosecution’s harsh treatment of suspects in the investigation procedures it conducts is on the decrease. It is doubtful, though, that such cruel act has been totally uprooted. As another incident in which the suspect died due to the prosecution’s torture of him in the investigation procedure that was carried out occurred in October 2002, in 2003, the National Human Rights Commission (NHRC) took cognizance of the police’s torture of suspects and recommended the prosecution of policemen who are found guilty of such cruel act, as reflected in Article 125 of the Korean Criminal Law. The gravity of torture of a suspect lies in the fact that it is not an eventuality but a structural problem in the prosecution. The Constitution of the Republic of Korea has guaranteed the human dignity and the fundamental human rights of individuals. The said constitution stipulates the principles of the presumption of innocence, lawful procedures, the prohibition of torture and the compulsion of a suspect to testify against himself, and the denial of evidences obtained through torture, among others. The constitution enactment authority’s view of the human rights it must safeguard has been reflected in these clauses of the constitution, which had been elevated to the principles on which the Criminal Procedure Act is based. Article 125 of the Korean Criminal Law states: “A person who, in performing or assisting in activities concerning the judgment, prosecution, and arrest of an individual, and other functions involving human restraint, commits an act of violence or cruelty against a criminal suspect or against another person while carrying out his duties, shall be punished by imprisonment for not more than five (5) years and by the suspension of his rights for not more than ten (10) years.” This provision punishes the police or the prosecution for any form of harsh treatment of a suspect it may carry out in the course of an investigation procedure it conducts. In addition, Article 124, clause 1 stipulates: “If a person who performs or assists in activities concerning the judgment, prosecution, and arrest of an individual, and other functions involving human restraint, arrests or imprisons another in a way that involves the abuse of his official authority, he shall be punished by imprisonment for not more than seven (7) years and by suspension of his rights for not more than ten (10) years.” This provision punishes the police or the prosecution for any unlawful arrest or confinement it may commit. To uproot the torture of suspects in investigation procedures, the UN General Assembly adopted “Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment” on December 10, 1984. On January 9, 1995, Korea signed such document, which took effect on February 8. Korea, however, has not yet adopted the “Optional Protocol to the Convention against Torture.” In Korea’s amended Criminal Procedure Act (2007), various measures to prevent and control the torture of suspects in investigation procedures have been stipulated. The cases involving the torture of suspects in investigation procedures are expected to decrease since the new Criminal Procedure Act has been in effect since January 1, 2008. It is not realistic, however, to expect that the harsh treatment of suspects in investigation procedures will be completely overcome simply by such amendment of the Criminal Procedure Act. To completely prevent the commission of cruel acts against suspects in investigation procedures, efforts should be made to ensure that the prosecution and the police are always conscious of human rights. Moreover, effective related legislation based on the Constitution is needed, in addition to the international convention. The UN Convention against Torture Commission requested Korea to define its concept of torture clearly, to expand the scope of the punishments it imposes for torture, and to complement Article 125 of its highest criminal law, among others. Korea unfortunately suffers infamy for being one of the countries in modern history that commit considerable judicial murder. One of the reasons for the aforementioned UN commission’s request is that the article of Korea’s highest criminal law that punishes the prosecution or the police for torturing suspects simply requires a warrant of arrest before a person can be arrested and insufficiently punishes prosecutors who treat suspects unjustly by distorting the facts or the law in an investigation procedure. Further, the article of the said law that punishes unlawful arrest or confinement does not apply at all times. There is also no article that punishes a judge for coming up with a decision regarding whether to issue a warrant for a suspect’s arrest by distorting the facts or the law. The reform of the criminal justice system in Korea began on June 11, 2007. It is believed that this is a good opportunity to complement the articles mentioned above. To punish a prosecutor, policeman, or judge for deliberately distorting the facts or the law to effect the arrest or conviction of a suspect, as in China and Germany, it is hoped that Korea’s highest criminal law will be made to include a corresponding article. This will contribute much to preventing and controlling the harsh treatment of suspects in investigation procedures in the country.
  • 23.

    Introduction of Independent Inspection of Places of Detention into China and Combating Torture

    陈卫东 | Changjun Jin | 2009, (43) | pp.599~613 | number of Cited : 0
    Inspection of Detention is originated in Europe, and UN Committee against Torture has accelerated its global establishment by studying the institution and drafting relevant instruments. Liaoyuan City experimented the institution in order to further the study on it. Over 20 trained inspectors examined the places of detention in accordance with operating rules, interviewed randomly selected detainees and filled the forms of inspection. The external safeguarding mechanism can make the places of detention open and transparent. Its supervision is more independent because the inspectors are selected from the public. The institution is economical and thus easy to generalize. It covers wide spectrum and is able to prevent torture in greater areas. In China, foundation has been laid for the establishment of the institution: protection of human rights being incorporated in the Constitution, similar systems in laws and regulations, and ideas of public participation in judicial management. But when transplanting the institution into Chinese legal system, the selection of inspectors and check of their power should be paid great attention to, economic and conceptual difficulties should be overcome and the neutrality of places of detention should be elevated.
  • 24.

    Legalization of Secret Investigation

    Shin Yang Kyun | 2009, (43) | pp.615~636 | number of Cited : 14
    With the advance of industrialization and informatization criminal techniques are diversified and new types of crime are increasing, consequently criminal law emphasizes on crime prevention, besides on retribution and in the field of criminal procedure are introduced new methods of investigation, which can met crucial social phenomenon and criminal situation, and competence of investigative authorities is incline to being intensified. such phenomena are well-expressed in that european nations, including Germany, which has emphasized principle of the rule of law, strengthen fitness and effectiveness of investigation in revising their own criminal procedural act. It is a characteristic of new investigational methods to use scientific methods inconspicuously. secret investigation, which is indispensible for carring out investigational aim, can take a variety of forms and must not necessarily lie under legal reservation. If secret investigation is executed as compulsory method of investigation, it should be under constitutional and legal control. Under the present law, only communications restriction measure is under legal control, Protection of Communications Secret Act, but another secret investigations, such as secret photograph and recording, undercover investigation, shadowing and hiding, should be primarily under legal reservation. In the field of investigational law it appears before the footlight of ciminal procedural jurisprudence, to establish function and limit of principle of the rule of law reasonably.
  • 25.

    Widening and Controlling of the Prosecutorial Discretion

    Byung-Gak Choi | 2009, (43) | pp.637~663 | number of Cited : 2
    The prosecutor monopolizes the authority to prosecute all crimes except that petty offences may be charged by the chief police officer in korea. Prosecutors exercise discretion to choose whether or not to bring criminal charges, and what charges to bring, in cases where the evidence would justify charges. The decision to prosecute or not shall be based on the sentencing factors related to the offender, the victim, the offence and the circumstance. The prosecutorial discretion is essential to avoid unnecessary prosecution and achieve early diversion. But in order to prevent prosecutors from abusing their power, some form of review of the resulting decisions should be permitted. The prosecutorial discretion widens by allowing partial prosecution and conditional suspension of prosecution. Prosecutors may opt to charge and try a defendant in separate prosecutions or under a multi-count indictment. Though there are some controversies on the boundary, the prosecutor is allowed to present secondary charges or alternative charges in a single prosecution. The conditional suspension of prosecution, in which the prosecutor put a burden on the offender, has been introduced with regard to handling juvenile delinquency, domestic violence and prostitution cases. The devices to control the power of the prosecutor are as follows. The appeal to higher prosecutors' office, the motion for order to the high court, the petition to the constitutional court and the special prosecutor by legislation. The new Criminal Procedure Act of 2007 has widened the object of the motion to all crimes and transformed court's order from quasi-prosecution to compulsory prosecution. But the right to initiate the motion should be endowed to the complainant who is not a victim. Providing for additional levels of review will improve decision-making of the prosecutor.
  • 26.

    Reform on Arrest in China

    汪建成 | Changjun Jin | 2009, (43) | pp.665~685 | number of Cited : 1
    The arrest in China consists of the act of arrest and the subsequent detention. The requirements for arrest are that there are evidences showing the facts of offense, that the offense is punishable by imprisonment and more severe punishments, and that it is necessary to have the offender arrested. The procuratorate has the power of approving arrests; it makes the decision to approve or disapprove after examining the facts. The problems concerning arrest in China are that the requirements for arrest are not quite operative, that the rate of approval and the rate of custody are always very high, and that the rate of guaranteed pending trial is low. China may experiment to innovate conditioned arrest. The academic circle raises diverse voices on its connotation, legality and the range of “major cases”. The conditioned arrest itself, however, is an innovation on the method of examination and approving, which does not lower the standards of arrest requirements. It is favorable for the establishment of case diversion system and it is possible to accelerate the advent of judicial review in China. During the course of reform, the standardization must be achieved; the extension of application should be avoided, and the relationship between the procuratorate and public security organ should be properly dealt with.
  • 27.

    Reform of Criminal Procedure and Control of Confinement

    TAEMYEONG KIM | 2009, (43) | pp.687~717 | number of Cited : 7
    The Criminal Procedure Act was originally enacted in 1954 directly after the end of Korean War (1950-1953), when Korea was stricken with poverty and under extreme chaos. Recently it has been often proposed that Criminal Procedure Act needs to be reformed as to reflect today's economical, political, and social development of Korea adequately. Korea has undergone a major Judicial Reform since 2003. In 2005, the Presidential Committee on Judicial Reform proposed a draft bill of the revised Criminal Procedure Act to the President of Republic of Korea. In 2006, the Government officially adopted the revised bill and submitted it to the National Assembly of Republic of Korea. Finally on June 1. 2007, the National Assembly enacted the bill of the Criminal Procedure Act. Confinement of a suspect is a kind of necessary evil for efficient execution of criminal procedure. However the right of the people to be secure in their persons against unreasonable arrest or detention shall not be violated. The new Criminal Procedure Act, which has been revised throughout almost all the sections, has many measures to reinforce the illegal confinement of investigation agency. The Arrest system including detention, writ examination and habeas corpus provisions has been revised drastically. In the new Criminal Procedure Act, the writ request period is revised to not longer than 48 hours after urgent arrest and an acquittal notice scheme is newly designed. In case of detention, when a policeman or prosecutor takes an accused into custody he should take into consideration some reasons, for example severity of a crime, risk of recidivism etc. And the detention period is revised according to each decision. Futhermore all the accused ought to be taken a necessary writ examination. In case of habeas corpus system, the ambit of requester is wider than before, a notice scheme is newly made to the requester, and the period of writ examination is shorter than before in behalf of the defendant.
  • 28.

    Actuality and Reformation of Discretionary Nonprosecution in China

    宋英輝 | Changjun Jin | 2009, (43) | pp.719~732 | number of Cited : 0
    Criminal procedure law amended in 1996 established discretionary nonprosecution decided by inspecting authority and regulated definitelyits applied situation and correlated proceedings. Discretionary nonprosecution bears the functions of procedure diverging, improving criminal procedural efficiency, deploying rationally judicial resource and so on. Lots of factors in system or outside lead to extreme lack of application of discretionary nonprosecution. Change the traditional idea of attaching importance to beating crime in direction of harmonious society thought. At the same time, perfect criminal procedure law, establish correlated measure, and reform checking and appraising mechanism inside of inspecting authority, to make more use of discretionary nonprosecution.
  • 29.

    Die Anvertrauung einer Sache bei der Unterschlagung im Koreanischen StGB

    HA TAE YOUNG | 2009, (43) | pp.733~759 | number of Cited : 11
    Das Urteil des koreanischen höchsten Gerichts vom 29. März 2002 - 2001 StR 6550 [Sachverhalt] A betreibt ein Edelsteingeschäft. Am 16. August 2000, gegen 14:00 Uhr, besuchte ein Gast sein Geschäft, um einen 1,06-karätigen Diamantring (ca. 600 dollar) zu kaufen. Aber das Geschäft hatte kein Modell, welches der Gast wünschte. A besuchte deshalb das Edelsteins- geschäft des Nachbars B, um ein entsprechendes Modell des 1,06- karätigen Diamantrings zu leihen. Obwohl der Gast diesen 1,06-karätigen Diamantring nicht kaufte,. behielt A diesen 1,06-karätigen Diamantring und gab B das Geld nicht zurück.. Am 6. September 2000 hat B von A gefordert, den geliehenen 1,06-karätigen Diamantring zurückzugeben. Aber A verzichtete auf den Anspruch der Rückgabe ohne Grund. Der Staatsanwalt klagte A wegen Unterschlagung gemäß § 355 Abs. 1 KStG an. Die erste Instanz sprach aber A frei. Es bestand kein Ver- trauensverhältnis zwischen A und B, sondern nur ein Handel. Der Staatsanwalt führte in der Revision aus, dass A entweder gemäß § 355 Abs. 1 KStGB Unterschlagung oder gemäß § 347 KStGB Betrug begangen hat. Aufgrund des fehlenden Vertrauensverhältnisses hat die zweite Instanz A wie die erste Instanz freigesprochen. Das koreanische höchste Gericht hat die Revision bezüglich des § 355 Abs. 1 Unterschlagung KStG zugelassen. Das koreanische höchste Gericht hat anerkannt, dass die Anvertrauung einer Sache bei der Unterschlagung im koreanischen StGB durch eine traditionelle Handelsgewohnheit gebildet werden kann. Nach meiner Meinung ist die Auslegung des koreanischen höchsten Gerichts nicht richtig, weil sie den Bereich der Anvertrauung einer Sache bei der Unterschlagung im koreanischen StGB zu weit interpretiert hat. Kontrovers beurteilt wird dies zum einen bei sittenwidrigen Vertrauens- verhältnissen, wenn etwa die Sache zur Verfolgung sittenwidriger Zwecke anvertraut wurde. Die Anvertrauung einer Sache bei der Unterschlagung im koreani- schen StGB ist erfüllt, wenn die Vertrauensbeziehung zwischen Sach- eigentümer und Täter konkret gebildet wird. Wird diese Voraussetzung nicht erfüllt, könnte das Gesetzlichkeitsprinzip im StGB überflüssig sein. In dieser vorliegenden Arbeit wird der Bereich der Anvertrauung einer Sache bei der Unterschlagung im koreanischen StGB untersucht(II). Der Kernpunkt der Rechtsprechung wird durch dieses Konzept weiter analy- siert(III). Am Ende hat der Verfasser einen neuen Gesetzesänderungs- entwurf des § 355 Unterschlagung KStGB vorgeschlagen(IV). § 355 Unterschlagung KStGB (1) Wer eine fremde bewegliche Sache sich oder einem Dritten rechtswidrig zueignet, wird mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe bestraft, wenn die Tat nicht in anderen Vorschriften mit schwererer Strafe bedroht ist. (2) Ist in den Fällen des Absatzes 1 die Sache dem Täter anvertraut, so ist die Strafe Freiheitsstrafe bis zu fünf Jahren oder Geldstrafe. (3) Der Versuch ist strafbar.