전자장치 부착요건의 해석범위와 한계

• 영문명: Limitation of the Interpretation in Criminal Law
• 발행기관: 한국형사판례연구회
• 저자명: 황태정(HWANG, Tae-Jeong)
• 간행물 정보: 『형사판례연구』형사판례연구 제20권, 210~239쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2012.06.30

영문 초록

The punishment laws and regulations should be strictly interpreted and applied according to phrases based on ‘Nullum crimen sine lege’principles, and they should not be interpreted excessively in disadvantage of the defendant nor be interpreted analogically, and requirements and/or conditions of attachment of electronic device should be also interpreted in same way. The prosecutors were permitted to ask the court order of attachment of electronic device in accordance with the Act on the Electronic Monitoring of Specific Criminal Offenders when a criminal was admitted to have habit by committing sex violence crime two times or more(including guilty judgment). Majority opinions accepted guilty judgment only: When the court judged whether or not the one who was given request for oder to attachment of electronic device committed sex violence crime two times or more, it should not consider previous record of protective disposition in accordance with the Juvenile Act. On the other hand, minority opinions said that the regulation should be applied at guilty judgment only, so that previous record of protective disposition against sexual violence in accordance with the Juvenile Act should be applied to sex violence crime two times or more. Majority opinion followed not only the Juvenile Act but also protective disposition to be advantageous to the one who was given request for oder to attachment of electronic device: But, ‘committing crime’ was limited to ‘guilty judgment’except for behavior of corresponding case not to be good from point of view of interpretation of the Criminal Act. Majority opinion said that the one who committed sex violence crime should be punished in accordance with the Act on the Electronic Monitoring of Specific Criminal Offenders depending upon two cases to be unfair, that is to say, guilty judgment in accordance with general criminal procedures and protective disposition in accordance with the Juvenile Act. Judicial precedents of lower court differed to require legislative supplementation.

목차

Ⅰ. 사실관계

Ⅱ. 재판의 경과

Ⅲ. 대법원판결 요지

Ⅳ. 쟁점에 대한 견해

Ⅰ. 들어가며

Ⅱ. 형법의 해석과 문언의 가능한 범위

Ⅲ. 전자장치부착법의 체계적·목적적 해석

Ⅳ. 마치며

키워드

전자장치부착법 전자장치 부착명령청구 성폭력범죄 소년보호처분 Act on the Electronic Monitoring of Specific Criminal Offenders,Electronic Device Request for Order to Attach Electronic Device Sexual Violence Crime Juvenile Protective Disposition