[목 차]
발간사 - 이동희 · 김혁(한일형사법연구회 대표 · 간사) ··················································· iii
축사 - 신동운(서울대학교 명예교수) ·······································································v
축사 - 미츠이 마코토(三井 誠) 고베대학(神戸大学) 명예교수 ········································ vii
제1편 형법 · 형사정책
제1부 성범죄 규정의 개정에 관하여 3
1장 한국에서의 성범죄 처벌규정의 변화와 한계 【김태명】························5
Ⅰ. 머리말 ····················································································· 5
Ⅱ. 한국에서의 성범죄 처벌규정의 변화 ·················································8
1. 「형법」 상 성범죄 처벌규정의 변화 ················································8
2. 특별법상 성범죄 처벌규정의 변화과정 ············································9
(1) 성범죄에 대한 처벌강화 ··························································9
(2) 성범죄자에 대한 각종 보안처분의 도입·실시 ································ 10
3. 한국의 성범죄 처벌규정의 변화 요인 ··········································· 13
Ⅲ. 한국의 성범죄 처벌규정의 한계 ·····················································14
1. 한국의 성범죄 발생실태 ·························································· 14
2. 형벌의 문제점 ····································································· 16
3. 보안처분의 문제점 ································································ 17
4. 권력형성범죄에 대한 미흡한 대처 ··············································· 19
Ⅳ. 맺음말 ·················································································· 20
2장 성범죄규정 개정의 의미 【고토 히로코; 後藤弘子】 ·····························21
Ⅰ. 역사적인 성 형법개정 ································································21
Ⅱ. 제한적인 성 형법개정 ································································22
Ⅲ. 강간죄에서 강제성교 등 죄로 ·······················································23
Ⅳ. 성교 동의연령은 여전히 낮은 상태 ·················································23
Ⅴ. 폭행 · 협박 요건의 유지 ······························································25
Ⅵ. 비친고죄화에 의한 피해자 지원 ····················································27
Ⅶ. 감호자에 의한 강제성교 등 죄 ······················································28
Ⅷ. 해야 할 일은 많이 남아있다 ·························································29
추록 ···························································································31
제2부 사형 제도35
3장 사형의대체형 【조기영】 ·································································37
Ⅰ 서설 ······················································································37
Ⅱ 한국의 사형제도 현황과 사형존폐론의 전개 ······································38
1. 사형제도 현황 ······································································38
2. 사형존폐론의 전개 ·································································39
(1) 대법원·············································································41
(2) 헌법재판소 ········································································42
3. 국회의 사형폐지특별법안의 발의 ·················································44
Ⅲ 사형의 대체형 ··········································································45
1. 서설 ··················································································45
2. 절대적 종신형 도입론 ······························································46
3. 상대적 종신형 도입론 ······························································47
Ⅳ 결론적 고찰 ·············································································49
4장 석방 가능성 없는 종신형과 비인도적 형벌
【나카무라 유토; 中村悠人】 ······························································51
Ⅰ. 들어가며(일본의 상황) ·······························································51
Ⅱ. 유럽의 상황 ············································································55
xvi 세부목차
Ⅲ. 일본의 사면제도는 종신형 감축 가능성을 열 것인가? ···························62
Ⅳ. 결론 ······················································································65
제3부 모욕죄의 동향67
5장 사이버모욕죄·사이버명예훼손죄의 처벌규범 및 입법 논의
【황태정】 ·····················································································69
Ⅰ. 들어가며·················································································69
Ⅱ. 현행법의 체계적 해석과 지향점 ·····················································71
1. 형법과 정보통신망법 규정 간의 관계설정 ······································71
2. 형법 제309조의 입법취지와 함의(含意) ········································74
3. 정보통신망법 제70조의 해석방향 ···············································76
Ⅲ. 명예훼손죄와 관련 쟁점 ······························································77
1. 사실적시 명예훼손죄의 폐지 문제 ···············································78
2. 위법성조각사유의 다양화 문제 ··················································80
Ⅳ. 모욕죄와 관련 쟁점 ····································································87
1. 소위 사이버모욕죄의 신설 문제 ··················································87
2. 형법상 모욕죄의 폐지 문제 ·······················································91
Ⅴ. 마치며 ···················································································92
추록 ·····························································································96
6장 모욕죄의 법정형 개정에 대하여 【가나자와 마리; 金澤真理】 ················97
Ⅰ. 들어가며·················································································97
Ⅱ. 모욕죄의 자리매김: 명예훼손죄와의 대비 ·········································98
Ⅲ. 사실적시의 유무가 문제가 되는 예 ················································101
Ⅳ. 모욕죄의 법정형의 상향 ····························································102
Ⅴ. 모욕죄의 새로운 지평 ·······························································104
Ⅵ. 나오며 ·················································································106
추록 ··························································································107
제4부 형법개정의 최신 동향 109
7장 형법개정의 필요성 - 형사제재를 중심으로 【최준혁】 ·····················111
Ⅰ. 들어가며···············································································111
Ⅱ. 쟁점별 논의 ···········································································114
1. 형의 종류(제41조) ·······························································114
(1) 1992년 형법개정법률안(제36조) ············································· 114
(2) 2011년 형법(총칙)일부개정법률안(제40조)··································114
2. 자유형의 기간(제42조) ··························································116
(1) 1992년 형법개정법률안(제37조) ············································ 116
(2) 2011년 형법(총칙)일부개정법률안(제41조)··································116
3. 자격상실과 자격정지(제43조, 제44조) ········································117
(1) 1992년 형법개정법률안(제38조, 제39조) ··································· 117
(2) 2011년 형법(총칙)일부개정안(제42조) ······································ 117
4. 벌금(제45조) ·····································································117
(1) 1992년 형법개정법률안(제40조) ············································· 117
(2) 2011년 형법(총칙)일부개정법률안(제43조)··································118
5. 구류(제46조)와 과료(제47조) ··················································118
(1) 1992년 형법개정법률안(제41조, 제42조) ··································· 118
(2) 2011년 형법(총칙)일부개정법률안(제44조)··································119
6. 형의 경중(제50조) ·······························································119
(1) 1992년 형법개정법률안(제43조) ············································· 119
(2) 2011년 형법(총칙)일부개정법률안(제45조)··································119
7. 몰수(제48조, 제49조) ···························································119
Ⅲ. 검토 ····················································································120
1. 개별쟁점에 관한 의견 ····························································120
2. 맺으며 ·············································································126
추록 ··························································································128
8장 구금형의 신설 【나카무라 유토; 中村悠人】 ·······································130
Ⅰ. 구금형의 창설과 형벌 내용 ·························································130
Ⅱ. 형벌론과 처우론의 관계 ····························································134
Ⅲ. 처우개념···············································································137
Ⅳ. 자유형 순화론, 특히 작업의 점에서 ···············································140
Ⅴ. 형벌의 목적과 처우 · 행형의 목적 ················································144
Ⅵ. 보충 ····················································································145
제2편 형사절차
제1부 영상녹화물의 본증 이용을 둘러싼 양국의 논의151
9장 영상녹화물의 본증 이용을 둘러싼 한국의 논란 【류부곤】 ···············153
Ⅰ. 들어가며···············································································153
Ⅱ. 한국 형사소송법상 영상녹화제도의 내용과 주요 특징 ·························155
1. 영상녹화제도의 도입과정과 내용 ···············································155
(1) 수사기관의 피의자신문과 참고인조사에 대한 영상녹화 ······················158
(2) 조서의 증거능력과 관련한 영상녹화물의 사용 ································159
(3) 기억환기의 수단인 영상녹화물 ················································160
2. 현행 영상녹화제도의 주요 특징 ·················································161
Ⅲ. 영상녹화물의 증거능력에 대한 논의상황과 분석 ·······························164
1. 논의상황의 개관 ··································································164
2. 대법원의 판단 - 참고인조사과정에 대한 영상녹화물 ·························167
3. 양측 주장의 쟁점별 정리 ························································169
Ⅳ. 논의를 마치며 ········································································175
추록 ··························································································177
10장 취조기록매체(영상녹화물)의 실질증거화를 둘러싸고
【이부스키 마코토; 指宿 信】 ···························································181
Ⅰ. 시작하며···············································································181
Ⅱ. 문제제기···············································································182
Ⅲ. 학설의 상황 ···········································································185
Ⅳ. 재판실무와 판례 ·····································································189
Ⅴ. 끝을 맺으며 ···········································································191
추록 ··························································································197
제2부 국민의 사법참여 201
11장 국민참여재판의 시행 성과와 과제 【이동희】 ··································203
Ⅰ. 글을 시작하며 ········································································203
Ⅱ. 국민참여재판의 도입경위 및 시행상황의 분석 ··································206
1. 제도도입을 둘러싼 찬반논쟁과 시범적 실시 ···································206
2. 제도요약 및 재판원재판과의 비교 ··············································209
(1) 국민참여재판의 성격 ·························································· 209
(2) 재판원재판의 비교····························································· 209
3. 사건의 접수 및 처리상황의 분석 ················································212
(1) 신청율 및 실시율 ······························································ 212
(2) 배제율 및 철회율 ······························································ 213
4. 배심원평결 및 판결에 대한 분석 ················································216
(1) 배심원의 평결분포 및 무죄평결율 ············································ 216
(2) 공판 및 판결 ··································································· 218
(3) 평결과 판결의 일치도 ························································· 219
(4) 양형의견과 선고형····························································· 221
(5) 상소관계 ······································································· 221
Ⅲ. 국민참여재판의 성과에 대한 평가 ················································223
1. 제도 도입에 수반된 법 개정과 형사절차의 선진화 ···························223
2. 사법의 민주적 정당성과 신뢰의 제고 ···········································225
(1) 민주적 정당성 ································································· 225
(2) 국민의 사법에 대한 신뢰의 제고 ··············································226
3. 실체적 진실발견과 적법절차, 그리고 공정한 재판 ····························227
Ⅳ. 최종형태 관련 주요쟁점에 대한 검토와 제언 ····································230
1. 최종형태안의 성립과 이를 둘러싼 논쟁 ········································230
(1) 국민사법참여위원회의 발족과 개정안의 의결 ································230
(2) 법무부의 수정안 입법예고와 정부안의 국회제출 ·····························231
(3) 주요쟁점의 요약 및 비교 ······················································232
2. 실시요건으로서 신청주의 방식에 대한 검토 ···································234
(1) 낮은 신청률 · 실시율 및 높은 철회율의 문제 ··································234
(2) 정부안에 대한 검토 및 개선방안 ··············································236
3. 배제결정제도 ·····································································238
4. 심원평결의 효력: 기속력 부여인가 권고적 효력인가 ·························239
(1) 제도 및 운용현황 ······························································239
(2) 헌법적 문제의 해명과 검토 ···················································239
(3) 개선방안 및 정부안의 검토 ···················································241
추록 ··························································································243
12장 재판원재판의 현상과 과제: 재판원제도의 확대와 형사 소송의
새로운 절차화를 위해 【오카다 요시노리; 岡田悦典】 ·························245
Ⅰ. 글 머리에 ··············································································245
Ⅱ. 일본의 재판원제도의 특색 ··························································246
Ⅲ. 재판원제도의 가능성 ································································247
1. 규모의 확대로 ·····································································247
2. 재판원후보자의 사퇴율 · 출석률에 관하여 ······································248
3. 일본사회의 거울로서의 과제 ····················································250
Ⅳ. 형사소송의 새로운 절차화를 향하여 ··············································251
1. 사실인정과 양형절차의 구분 ····················································252
2. 공판 전정리절차와 공판의 완전 분리 ···········································253
3. 명확한 증거법칙의 확립 ·························································253
Ⅴ. 글을 맺으며 ···········································································254
제3부 공적 변호제도 259
13장 형사변호의 현안 및 내실화 방안 - 국선변호인제도의 확대
적용을 중심으로 【김봉수】 ···························································261
Ⅰ. 들어가는 말 - 변호인의 “충분한” 조력을 받을 권리 ···························261
Ⅱ. 국선변호인제도의 현황과 한계 ····················································262
1. 국선변호인 제도의 운영 현황 ···················································262
2. 현행 국선변호인제도의 문제점과 한계 ·········································263
(1) 피고인 국선변호의 한계와 국선변호 대상의 확대 필요성 ····················263
(2) 국선변호인의 ‘법원종속’ 현상과 국선변호의 독립성 확보 ····················264
(3) 국선변호 서비스의 질적 저하 문제와 보수의 현실화 ························264
Ⅲ. 피의자 국선변호에 있어서 현안과 대안 ··········································265
1. 수사절차에서 ‘피의자’ 국선변호의 필요성과 대안 ·····························265
(1) 피의자와 변호인의 ‘충분한’ 조력을 받을 권리 ·······························265
(2) 피의자 국선변호의 현실화 방안으로서 ‘형사공공변호인 제도(안)’ ··········266
2. “형사공공변호제도(안)”의 주요 내용과 그 한계 ·······························266
(1) 국선변호의 대상 범위 ························································· 268
(2) 국선변호인 지위 및 변론의 독립성 확보 ·····································269
(3) 피의자의 변호인 선택권 인정 여부 ··········································· 271
(4) 피의자 국선변호인의 계속적 변호 인정 여부·································273
Ⅳ. ‘피해자’ 변호에 있어서 현안과 대안 ··············································274
1. 형사절차에서 피해자의 소외 문제 ··············································274
2. 피해자 국선변호제도의 내용과 현황 ············································275
(1) 「성폭력범죄의 처벌 등에 관한 특례법」상 피해자에 대한 국선변호 ········275
(2) 「아동 · 청소년의 성보호에 관한 법률」상 피해자에 대한 국선변호 ···········275
(3) 「아동학대범죄의 처벌 등에 관한 특례법」상 피해자에 대한 국선변호 ··············· 275
(4) 검사에 의한 피해자 국선변호사의 선정 ······································276
3. 현행 피해자 국선변호제도의 문제점과 개선방향 ······························276
(1) 법률구조 및 변호인 조력권의 충분한 보장 차원에서의 불균형 ··············276
(2) 피해자 국선변호사의 조력 내용과 국선변호 대상범죄의 확대 필요성 ······277
Ⅴ. 나가는 말 - 국선변호인제도의 일원화 필요성 ·································279
14장 일본에서의 공적 변호제도의 발전과 과제
【오카다 요시노리; 岡田悦典】 ··························································281
Ⅰ. 들어가며···············································································281
Ⅱ. 일본의 공적 변호제도의 역사적 연혁 ·············································282
1. 피고인 국선변호제도의 등장 ····················································282
2. 피의자 국선변호제도의 도입론과 당번 변호사제도의 등장···················283
3. 공설변호인제도론 ································································285
Ⅲ. 피의자 국선변호제도의 탄생과 현황 ··············································286
1. 사법제도개혁에서의 피의자 국선변호제도의 도입 ····························286
2. 국선변호제도의 현황 ·····························································287
Ⅳ. 향후 과제 ··············································································289
1. 공적 변호제도의 국제기준 ·······················································289
2. 체포단계 피의자 국선변호제도 ··················································290
3. 신병 불구속 피의자에 대한 피의자 국선변호제도 ·····························291
4. 공적 변호제도의 그 밖의 과제 ··················································293
Ⅴ. 나오며 ·················································································293
제4부 형사절차의 전자화301
15장 디지털 증거의 수색·압수 【박용철】 ·············································303
Ⅰ. 들어가는 글 ··········································································303
Ⅱ. 원본성 · 동일성 · 무결성의 문제 ····················································305
1. 디지털 증거 압수 · 수색시 중요성이 대두된 새로운 개념 ·····················305
2. 주요 판례 및 동일성 · 무결성 확인 절차 ········································306
(1) 주요 판례 ·····································································306
(2) 동일성 · 무결성 확인 절차 ·····················································307
3. 소결 ················································································308
Ⅲ. 압수 · 수색시 참여권 인정의 여부 ·················································309
1. 디지털 증거 압수 · 수색시 참여권 의미의 확대 ································309
2. 주요 판례 및 참여권 해석의 미래 ···············································310
세부목차 xxiii
(1) 주요판례 ·······································································310
(2) 참여권 해석의 미래 ····························································312
3. 소결 ················································································312
Ⅳ. 원격지 압수 · 수색의 문제···························································313
1. 디지털 증거 압수 · 수색 범위의 실질적 확대 ··································313
2. 주요 판례 및 원격지의 의의 ····················································314
(1) 주요 판례 ·····································································314
(2) 원격지의 의의 ································································314
3. 소결 ················································································315
Ⅴ 나가며 ··················································································315
16장 새로운 디지털 증거의 취득 방법의 제안을 둘러싸고
【이부스키 마코토; 指宿 信】 ····························································317
Ⅰ. 소결 ····················································································317
Ⅱ. 2011년 형사소송법 개정 ···························································317
1. 리모트 수색 및 압수(원격 액세스) ··············································318
2. 기록명령부압수 ···································································318
3. 전자적 기록의 압수 ·······························································318
4. 통신이력 보전요청 ·······························································319
Ⅲ . ‘전자적 기록 제공명령’의 신설 제안 ··············································319
Ⅳ. 제공명령 유사제도 비교법적 자료: 미국법 ······································323
Ⅴ. 결론 ····················································································329
추록 ··························································································336
자 료 편
「한일형사법연구회」 학술세미나 개최 현황 ...............................................340
집필자 소개 ......................................................................................................346
AD광고
AD광고
