직업수행제한을 강제처분으로 도입함에 있어서 제기되는 법리적 문제의 해결

• 영문명: Application of Temporary Restriction on Employment as A Compulsory Measure in Germany
• 발행기관: 한국형사정책학회
• 저자명: 김정환(Kim, Jong-Hwan)
• 간행물 정보: 『형사정책』刑事政策 第28卷 第2號, 37~64쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2016.09.30

영문 초록

A new criminal punishment was introduced into German Criminal Law as well as German Criminal Procedure Law. For example, Article 70 of German Criminal law regulates restriction on employment as criminal punishment and Article 132a of German Criminal Procedure Law regulates temporary restriction on employment as a compulsory measure. There is a risk that temporary restriction on employment as a compulsory measure could violate the freedom to occupation and the presumption of innocence; However, typical compulsory measures such as detention and seizure could also pose the same risk. Therefore, it could be said that temporary restriction on employment could be imposed as a compulsory measure unless it goes against the principle of proportionality. Its legislative purpose is to prevent a person who committed a crime by taking advantage of one s occupation from committing the second offense related to the occupation. Accordingly as a means to the above-mentioned purpose, the adequacy of the compulsory measure and the balance of legal interests could be acknowledged. However, the restriction period should not extend too long and the restricted range of job activities should be limited to the certain activities in regard to the previous crime for the principle of the least restrictive alternative, and a method to withdraw the restriction before a trial decision should be prepared in case the necessity for the measure dissipates. If less restrictive alternatives than restriction on employment such as other compulsory measures can prevent the second offense related to the occupation, then those alternatives should be applied in prior. Moreover, criminal compensation should be also considered when introducing restriction on occupation as a compulsory measure. Considering the low public confidence in jurisdiction, introducing a new compulsory method would be a tough road because of the risk of abuse. But as the society grows complicated and diversified, it is needed to prevent the second conviction not just by detention but temporary restriction on occupation when job-related crimes occur and there s a recidivism risk even during a criminal trial. This research could be the beginning of legislation for Restriction on Employment which has been currently introduced into several Acts to be used as a compulsory measurement and further concrete proposals are also needed.

목차

Ⅰ. 도입말

Ⅱ. 형사제재로서 취업제한

Ⅲ. 독일의 임시직업금지

Ⅳ. 강제처분으로서 임시직업금지의 법리적 문제

Ⅴ. 맺음말

키워드

강제처분 직업수행의 제한 독일의 임시직업금지 직업의 자유 무죄추정의 원칙 과잉금지원칙 형사보상 Compulsory Measures Temporary Restriction on Employment of Germany the freedom to occupation the presumption of innocence the principle of proportionality criminal indemnity