고소권 제한원리로서 권리남용금지원칙의 도입에 관한 연구

• 영문명: Revision Prohibiting Abuse of Right as Limitation on Right of Complaint
• 발행기관: 한국피해자학회
• 저자명: 김혜경(Kim Hye Kyung)
• 간행물 정보: 『피해자학연구』제25권 제1호, 29~69쪽, 전체 41쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2017.04.30

영문 초록

The right of complaint has meaning as aggressive right to participate the criminal procedure through which criminal victim can receive legal compensation. But sometimes overuse or misuse of right gives rise to obstruction of real exercise of other’s that right. The concept of abuse of rights refers to situations in which a right is formally exercised in conformity with the conditions laid down in the rule granting the right, but where the legal outcome is against the objective of that rule. Moreover that results in interruption of criminal system simultaneously. Altough overuse of the right of complaint has negative effect, this rght, especially the right based on constitution could restrict just only to coincide with constitutional limit as well as to legislate special law. So in this research pursues two methods; the one is to consider that from a different point of view as collision of fundamental rights and the other is to borrow or adopt The General Principle of the Prohibition of Abuse of Rights(Grundsatz des Verbots des Rechtsmissbrauchs) in private law area. The principle of prohibition of abuse of rights aims to correct the application of a rule of law on the basis of standards such as good faith, fairness, and justice if, despite formal observance of the conditions of the rule, the objective of that rule has not been achieved. And limit of abuse of right should have legal conditions as the subjective and objective requirement so that legal restriction need to be accepted legitimately and should be abidden by proportionality. So through thses levels must go throw four judgement, the concept of prohobotion of right abuse and it’s control can be obtained legal approval. And that means: lack of formal requirement and substancial requirement are condition that it can not be accepted for exercising rights in any cases. And then if formal requirement and substancial requirement were fulfilled, next step is inspection for the subjective and objective requirements that include malice and public order and good morals. Most of all for prevention of misuse or overuse of right, It should be followed to enact or revise the related acts including the Criminal Procedure Law. The sentence of law might signify that ‘The right of complaint should not be abused’. These general principle or article can play important role in narrow the gap between real world and normative area.

목차

Ⅰ. 들어가며: 피해자의 기본권 충돌과 해결방법으로서의 기본권 제한

Ⅱ. 고소권 남용의 의미 및 범위

Ⅲ. 고소권의 제한 원리: 헌법합치적 해석

Ⅳ. 고소권 남용의 범위 및 요건

Ⅴ. 권리남용금지 원칙의 입법적 도입방안

Ⅵ. 마치며

참고문헌

Abstract

키워드

고소권 권리남용 기본권 충돌 권리남용금지의 원칙 비례의 원칙 right of complaint abuse of a right collision of fundamental rights principle of statutory reservation proportionality