Pub Date : 2023-06-30DOI: 10.34222/kdps.2023.15.2.281
Sung-min Park
When The Act on the Use of Electronic Document in Criminal Justice Procedures is fully implemented in 2024, it is expected that full-fledged electronic litigation will be possible in criminal procedures. The scope of application of The Act on the Use of Electronic Document in Criminal Justice Procedures is limited to criminal justice affairs, but in the long run, it will expand to the macroscopic perspective of digitalization and intelligent informatization of overall criminal justice services. However, even if the law or system is established, there may be various expected problems in the process of operation. To this end, in this paper, first of all, the obstacles to the activation of Legal Tech, which is the environmental basis of electronic criminal proceedings, were examined. After confirming the specific aspects of the litigation, we examined the points where the electronic criminal proceedings can function or expand in the trial process In this paper, first of all, the fundamental cause of the lack of discussion on Legal Tech, which can be the environmental basis of electronic criminal proceedings, was identified. While accepting legal tech, such as intelligent information technology, the author raised issues such as our still conservative legal system and practices, information accessibility of personal information, and intellectual property rights infringement. Next, as a supplementary point for the success of electronic criminal proceedings, a plan to resolve the reluctance of those involved in the case in electronic criminal proceedings and a plan to prevent abuse of accumulated data were presented. Next, in the introduction process by stage of litigation, it was ordered to improve the system considering the difference in digital literacy in the process of submitting litigation documents, the issue of equality in the process of distributing electronic documents, and legislative overhaul for exceptions to the provision of service. On the other hand, the implementation of the Criminal Procedure Electronic Documents Act provides significant implications for e-discovery. In the disclosure of evidence, the practice of written caution will be overcome, and various problems raised in the academic world in relation to the refusal of the investigation agency to disclose evidence will be resolved. It will be possible to examine the adequacy of the reason for refusal by the investigative agency, and in particular, it will be possible to secure the binding force of the court's order to disclose evidence and prepare a separate regulation so that the investigative agency cannot refuse the order to disclose evidence. In addition, in this paper, we also looked at the possibility of using intelligent information technology in determining the verifiable power or reliability of electronic remote statements and statements that can be used in courts.
{"title":"Possibilities and Limitations of electronic criminal proceedings in the Introduction of Legal Tech","authors":"Sung-min Park","doi":"10.34222/kdps.2023.15.2.281","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.2.281","url":null,"abstract":"When The Act on the Use of Electronic Document in Criminal Justice Procedures is fully implemented in 2024, it is expected that full-fledged electronic litigation will be possible in criminal procedures. The scope of application of The Act on the Use of Electronic Document in Criminal Justice Procedures is limited to criminal justice affairs, but in the long run, it will expand to the macroscopic perspective of digitalization and intelligent informatization of overall criminal justice services. However, even if the law or system is established, there may be various expected problems in the process of operation. To this end, in this paper, first of all, the obstacles to the activation of Legal Tech, which is the environmental basis of electronic criminal proceedings, were examined. After confirming the specific aspects of the litigation, we examined the points where the electronic criminal proceedings can function or expand in the trial process In this paper, first of all, the fundamental cause of the lack of discussion on Legal Tech, which can be the environmental basis of electronic criminal proceedings, was identified. While accepting legal tech, such as intelligent information technology, the author raised issues such as our still conservative legal system and practices, information accessibility of personal information, and intellectual property rights infringement. Next, as a supplementary point for the success of electronic criminal proceedings, a plan to resolve the reluctance of those involved in the case in electronic criminal proceedings and a plan to prevent abuse of accumulated data were presented. Next, in the introduction process by stage of litigation, it was ordered to improve the system considering the difference in digital literacy in the process of submitting litigation documents, the issue of equality in the process of distributing electronic documents, and legislative overhaul for exceptions to the provision of service. On the other hand, the implementation of the Criminal Procedure Electronic Documents Act provides significant implications for e-discovery. In the disclosure of evidence, the practice of written caution will be overcome, and various problems raised in the academic world in relation to the refusal of the investigation agency to disclose evidence will be resolved. It will be possible to examine the adequacy of the reason for refusal by the investigative agency, and in particular, it will be possible to secure the binding force of the court's order to disclose evidence and prepare a separate regulation so that the investigative agency cannot refuse the order to disclose evidence. In addition, in this paper, we also looked at the possibility of using intelligent information technology in determining the verifiable power or reliability of electronic remote statements and statements that can be used in courts.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124673124","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-30DOI: 10.34222/kdps.2023.15.2.47
Hyeokki Kim
The unconstitutionality of the 'minor' part of Article 30, paragraph 6 of the Special Sexual Violence Act, which was enacted to prevent secondary damage to minors and victims of sexual violence who are mentally or physically incapacitated, has led to a situation where secondary damage to victims of sexual violence who are minors is feared. The reason was that, the purpose of this provision, to prevent secondary victimization, can be achieved through the use of the video relay method and the proper exercise of the judge's courtroom control, and the admission of evidence based solely on the authenticity of a trusted person present would unduly infringe on the accused's right to cross-examine and defense. However, the decision to exclude the application of Article 30(6) of the Special Law on Sexual Violence to all minors without specifying the age range of minors is not a reasonable decision from the perspective of equity with victims who have not fully formed their personality and are forced to recall the time of the crime by attending the public proceedings in any form, as it is bound to have an adverse effect on their personality formation and development. Moreover, there may be circumventive attempts to admit statements made during the investigation without calling the minor victim of sexual assault as a witness, resulting in a serious violation of the accused's right to defense. Therefore, it would be desirable to limit the scope to minors under the age of 13, and as the Constitutional Court stated in its decision, the active participation of the court, as a neutral body, in the investigation process at an early stage of the damage and granting evidentiary power to the statements obtained will help to discover the truth, prevent secondary damage to the victim, and ensure the defense rights of the accused. This will require courts to establish a dedicated organization to implement evidence preservation procedures and to expand their hardware and human infrastructure.
{"title":"Consider of Testimonial evidence from trusted persons and aggressive evidence preservation procedures","authors":"Hyeokki Kim","doi":"10.34222/kdps.2023.15.2.47","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.2.47","url":null,"abstract":"The unconstitutionality of the 'minor' part of Article 30, paragraph 6 of the Special Sexual Violence Act, which was enacted to prevent secondary damage to minors and victims of sexual violence who are mentally or physically incapacitated, has led to a situation where secondary damage to victims of sexual violence who are minors is feared. The reason was that, the purpose of this provision, to prevent secondary victimization, can be achieved through the use of the video relay method and the proper exercise of the judge's courtroom control, and the admission of evidence based solely on the authenticity of a trusted person present would unduly infringe on the accused's right to cross-examine and defense. However, the decision to exclude the application of Article 30(6) of the Special Law on Sexual Violence to all minors without specifying the age range of minors is not a reasonable decision from the perspective of equity with victims who have not fully formed their personality and are forced to recall the time of the crime by attending the public proceedings in any form, as it is bound to have an adverse effect on their personality formation and development. Moreover, there may be circumventive attempts to admit statements made during the investigation without calling the minor victim of sexual assault as a witness, resulting in a serious violation of the accused's right to defense. Therefore, it would be desirable to limit the scope to minors under the age of 13, and as the Constitutional Court stated in its decision, the active participation of the court, as a neutral body, in the investigation process at an early stage of the damage and granting evidentiary power to the statements obtained will help to discover the truth, prevent secondary damage to the victim, and ensure the defense rights of the accused. This will require courts to establish a dedicated organization to implement evidence preservation procedures and to expand their hardware and human infrastructure.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129938389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-30DOI: 10.34222/kdps.2023.15.2.75
H. Park
Rendering the right decision in the investigation and indictment procedure is pivotal in achieving criminal justice. To that end, all nations by various means seek to accomplish this goal. Examples of this would include nations endowing exclusive charging authorities to the prosecutor while others allow lay citizens to participate in the actual procedure. Citizen participation always carries the risk of undermining the efficacy of the criminal justice system but it can also facilitate the average citizen's understanding of and increase trust in the system. Historically, the grand jury has been the institution by which citizens can play an active role in the investigation and charging process. Beginning in the colonial period, the American grand jury protected the citizen's right in investigation and charging procedure and served as a check on the validity and efficacy of public functions. Despite much doubt regarding the objectivity of the grand jury as a mere organ of the prosecution as well as concern about its efficiency, its role has for the most part proved to be positive. The grand jury by taking part in the actual investigation and then deciding whether or not to indict has been a check on the power of the police and prosecution in major cases. In the United States the grand jury operates in different forms. Some jurisdictions require grand jury indictments for felonies while others make them optional. In addition, there are many variations among jurisdictions in ensuring procedural rights in grand jury procedures. However, basic procedures such as beginning an investigation by way of subpoena and reaching indictment decisions through jury deliberations remain common. In the United States, the necessity for grand jury reform such as enhancing jury independence and ensuring procedural rights of the witness and defendant have long been and continues to be proposed. The mere separation of investigative power from charging power can hinder efforts in achieving criminal justice goals. Using the American model as a base for our nation, it would be expedient to allow for different organizations to exercise these powers independently. Furthermore, policies in which citizens can take on decisive roles in the investigation and charging process must be established and efforts to improve continue. By careful study of the various grand jury models in the United States, Korea has a good foundation in which to develop a grand jury model that would be most suitable to our nation. Specifically a model that would allow for optional grand jury indictments and where procedural rights are ensured.
{"title":"The Current Picture of the American Grand Jury System and Proposals for Its Reform","authors":"H. Park","doi":"10.34222/kdps.2023.15.2.75","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.2.75","url":null,"abstract":"Rendering the right decision in the investigation and indictment procedure is pivotal in achieving criminal justice. To that end, all nations by various means seek to accomplish this goal. Examples of this would include nations endowing exclusive charging authorities to the prosecutor while others allow lay citizens to participate in the actual procedure. Citizen participation always carries the risk of undermining the efficacy of the criminal justice system but it can also facilitate the average citizen's understanding of and increase trust in the system. Historically, the grand jury has been the institution by which citizens can play an active role in the investigation and charging process. Beginning in the colonial period, the American grand jury protected the citizen's right in investigation and charging procedure and served as a check on the validity and efficacy of public functions. Despite much doubt regarding the objectivity of the grand jury as a mere organ of the prosecution as well as concern about its efficiency, its role has for the most part proved to be positive. The grand jury by taking part in the actual investigation and then deciding whether or not to indict has been a check on the power of the police and prosecution in major cases. In the United States the grand jury operates in different forms. Some jurisdictions require grand jury indictments for felonies while others make them optional. In addition, there are many variations among jurisdictions in ensuring procedural rights in grand jury procedures. However, basic procedures such as beginning an investigation by way of subpoena and reaching indictment decisions through jury deliberations remain common. In the United States, the necessity for grand jury reform such as enhancing jury independence and ensuring procedural rights of the witness and defendant have long been and continues to be proposed. The mere separation of investigative power from charging power can hinder efforts in achieving criminal justice goals. Using the American model as a base for our nation, it would be expedient to allow for different organizations to exercise these powers independently. Furthermore, policies in which citizens can take on decisive roles in the investigation and charging process must be established and efforts to improve continue. By careful study of the various grand jury models in the United States, Korea has a good foundation in which to develop a grand jury model that would be most suitable to our nation. Specifically a model that would allow for optional grand jury indictments and where procedural rights are ensured.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114983637","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-30DOI: 10.34222/kdps.2023.15.2.21
Han-Kyun Kim
This study examines the necessity and direction of legal control and human rights protection as electronic surveillance tools in criminal proceedings are expanded based on artificial intelligence technology from a policy and institutional perspective. In particular, the need for control and the search for ways to realize the enhancement of the quality of surveillance contents due to the technological advancement of electronic surveillance techniques should be newly emphasized. The need for criminal procedure control comes from the rule of law, and the direction of control should be to ensure the human rights of citizens. Legal control, including criminal law, should include the improvement of existing relevant legal systems and legislative policies to respond to new problems. As the current electronic surveillance system evolves into an expanded combination of location-tracking electronic devices and fixed video information processing devices (CCTV) as tools for electronic surveillance, the enhanced electronic surveillance system based on artificial intelligence technology will inevitably result in the challenge of reasonable and effective legal and institutional control. The expansion of electronic surveillance tools in criminal proceedings based on A.I. technology should not only reevaluate its effectiveness but also review its legitimacy, as the effectiveness of A.I. technology is overestimated while its risks are underestimated, and it is rapidly being introduced into reality. The urgency is evident in the fact that the expansion of electronic surveillance has not been met with the same level of prudence that has been exercised in the past in relation to drug, sexual violence, and terrorism offenses, as fantasies and expectations of advanced technology can undermine the boundaries of human rights in criminal justice more than fears of crime or the need for safety.
{"title":"How tocontrol AI technology-based electronic surveillance in criminal procedure","authors":"Han-Kyun Kim","doi":"10.34222/kdps.2023.15.2.21","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.2.21","url":null,"abstract":"This study examines the necessity and direction of legal control and human rights protection as electronic surveillance tools in criminal proceedings are expanded based on artificial intelligence technology from a policy and institutional perspective. In particular, the need for control and the search for ways to realize the enhancement of the quality of surveillance contents due to the technological advancement of electronic surveillance techniques should be newly emphasized. The need for criminal procedure control comes from the rule of law, and the direction of control should be to ensure the human rights of citizens. Legal control, including criminal law, should include the improvement of existing relevant legal systems and legislative policies to respond to new problems. As the current electronic surveillance system evolves into an expanded combination of location-tracking electronic devices and fixed video information processing devices (CCTV) as tools for electronic surveillance, the enhanced electronic surveillance system based on artificial intelligence technology will inevitably result in the challenge of reasonable and effective legal and institutional control. The expansion of electronic surveillance tools in criminal proceedings based on A.I. technology should not only reevaluate its effectiveness but also review its legitimacy, as the effectiveness of A.I. technology is overestimated while its risks are underestimated, and it is rapidly being introduced into reality. The urgency is evident in the fact that the expansion of electronic surveillance has not been met with the same level of prudence that has been exercised in the past in relation to drug, sexual violence, and terrorism offenses, as fantasies and expectations of advanced technology can undermine the boundaries of human rights in criminal justice more than fears of crime or the need for safety.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"104 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131478705","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-30DOI: 10.34222/kdps.2023.15.2.165
Jinyoung Hong
In this paper, we addressed the issue of whether it is possible to submit a written record of suspect's interrogation, which cannot be used as substantive evidence in court due to the defendant's denial of its contents, as impeachment evidence for proving guilt. While previous Supreme Court precedents have taken an affirmative stance on this matter, there have been dissenting academic opinions and lower court decisions against it. In addition, with the practical importance of this issue increasing after the amendment of the Criminal Procedure Act in 2020, the situation has changed. Although the previous Supreme Court precedents are generally valid, they have failed to sufficiently consider the risk that the fact-finding entity may have limited ability in utilizing such evidence only as impeachment evidence when it has potential risk to be used as substantive evidence. Therefore, this paper presents an interpretative approach that restricts the conditions for using a suspect's statement as impeachment evidence compared to the previous approach. First, impeachment should be limited to specific statements made by the defendant during the interrogation process. Second, the prosecutor should have made reasonable efforts to submit the defendant's statement as substantive evidence. Third, the lawfulness of the suspect's statement and the voluntariness of the confession should be recognized. Fourth, the accuracy of the statement during the writing process should be ensured.
{"title":"Admissibility of Written record of Interrogation as Impeachment Evidence","authors":"Jinyoung Hong","doi":"10.34222/kdps.2023.15.2.165","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.2.165","url":null,"abstract":"In this paper, we addressed the issue of whether it is possible to submit a written record of suspect's interrogation, which cannot be used as substantive evidence in court due to the defendant's denial of its contents, as impeachment evidence for proving guilt. While previous Supreme Court precedents have taken an affirmative stance on this matter, there have been dissenting academic opinions and lower court decisions against it. In addition, with the practical importance of this issue increasing after the amendment of the Criminal Procedure Act in 2020, the situation has changed. Although the previous Supreme Court precedents are generally valid, they have failed to sufficiently consider the risk that the fact-finding entity may have limited ability in utilizing such evidence only as impeachment evidence when it has potential risk to be used as substantive evidence. Therefore, this paper presents an interpretative approach that restricts the conditions for using a suspect's statement as impeachment evidence compared to the previous approach. First, impeachment should be limited to specific statements made by the defendant during the interrogation process. Second, the prosecutor should have made reasonable efforts to submit the defendant's statement as substantive evidence. Third, the lawfulness of the suspect's statement and the voluntariness of the confession should be recognized. Fourth, the accuracy of the statement during the writing process should be ensured.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"86 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121919511","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-31DOI: 10.34222/kdps.2023.15.1.61
Jihyun Kang
Mit zunehmender Bedeutung des Cyberspace und seiner zunehmenden Abhängigkeit steigen auch potenzielle Bedrohungen und Risiken im Cyberspace. Insbesondere die zunehmende Vertraulichkeit der Telekommunikation in letzter Zeit erschwert die Verfolgung von Straftaten. Daher haben einige Länder die Notwendigkeit einer Online-Durchsuchung frühzeitig erkannt und eine Methode mit Hilfe von Hacking-Technologien entwickelt. Unsere Rechtsvorschriften enthalten jedoch keine Bestimmungen für Online-Durchsuchung, und auch die rechtlichen Diskussionen darüber befinden sich in der Anfangsphase. Dagegen gibt es in Deutschland eine Online-Durchsuchung zur Kriminalprävention und Ermittlung. Selbstverständlich hat das Bundesverfassungsgericht entschieden, dass eine Verletzung der Grundrechte durch die Online-Durchsuchung mit einer Verletzung der Unverletzlichkeit des Wohnsitzes vergleichbar ist. Die Online-Durchsuchung ist die bisher größte Zwangsvollstreckung, bei der der Grad der Verletzung der Grundrechte entscheidend ist. Die Bestimmungen des deutschen Strafprozessgesetzbuches über Online-Durchsuchung werden unter strengen Tatbestände anerkannt. Wir untersuchen daher die Möglichkeit, eine Online-Durchsuchung mit Hilfe von Sicherheitslücken in unsere Rechtsvorschriften einzuführen.
{"title":"Zur Einführung der Online-Durchsuchung mit Sicherheitslücken","authors":"Jihyun Kang","doi":"10.34222/kdps.2023.15.1.61","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.1.61","url":null,"abstract":"Mit zunehmender Bedeutung des Cyberspace und seiner zunehmenden Abhängigkeit steigen auch potenzielle Bedrohungen und Risiken im Cyberspace. Insbesondere die zunehmende Vertraulichkeit der Telekommunikation in letzter Zeit erschwert die Verfolgung von Straftaten. Daher haben einige Länder die Notwendigkeit einer Online-Durchsuchung frühzeitig erkannt und eine Methode mit Hilfe von Hacking-Technologien entwickelt. Unsere Rechtsvorschriften enthalten jedoch keine Bestimmungen für Online-Durchsuchung, und auch die rechtlichen Diskussionen darüber befinden sich in der Anfangsphase. \u0000Dagegen gibt es in Deutschland eine Online-Durchsuchung zur Kriminalprävention und Ermittlung. Selbstverständlich hat das Bundesverfassungsgericht entschieden, dass eine Verletzung der Grundrechte durch die Online-Durchsuchung mit einer Verletzung der Unverletzlichkeit des Wohnsitzes vergleichbar ist. Die Online-Durchsuchung ist die bisher größte Zwangsvollstreckung, bei der der Grad der Verletzung der Grundrechte entscheidend ist. Die Bestimmungen des deutschen Strafprozessgesetzbuches über Online-Durchsuchung werden unter strengen Tatbestände anerkannt. Wir untersuchen daher die Möglichkeit, eine Online-Durchsuchung mit Hilfe von Sicherheitslücken in unsere Rechtsvorschriften einzuführen.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131181732","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-31DOI: 10.34222/kdps.2023.15.1.23
Oung-Seok Jeong
The court administration seems to be pushing to revise the criminal procedure rules in a way that allows the court to interrogate suspects and other related parties before issuing a search warrant. For the reason for the revision, seizure and search of electronic information are highly likely to infringe on privacy, freedom, and self-determination of information due to the nature of electronic information, so it is necessary to improve seizure and search practice in order to comply with the principle of screening and ensure the parties' participation in the procedure. Of course, it is difficult to denigrate the intention of the amendment to strengthen the protection of the basic rights of the people by strictly regulating the excessive seizure and search of investigative agencies. However, even if only the world's most advanced human rights protection system is collected and incorporated into our legislation, it would be difficult to evaluate it as a truly reasonable system if it excessively hinders the discovery of the truth or the legitimate purpose of the investigation procedure. Besides, the purpose of the revision of the Criminal Procedure Rules is not simply to regulate the seizure and search warrant issuance procedures of district court judges, but to restrict the seizure and search procedures more strictly than originally planned. The revision may not seem to directly infringe on the basic rights of suspects or detainees, but it is difficult to conclude that if a warrant is issued by proceeding with a new procedure, it may result in infringement of the basic rights of suspects or detainees according to an unscheduled procedure. In the 70th year of the Criminal Procedure Act, the constitutional consciousness that the sovereignty of the Republic of Korea lies with the people and all power comes from the people, is not the only issue of how to protect the people from state power (freedom from state) but now it is time to discuss and legislate. In other words, it is time to discuss victim-centered justice, which focuses on “minimizing misfortune” rather than “maximizing happiness,” aside from the question of how to control the fear of expanding public power. This is because as long as state power is viewed only as an infringer, it is difficult to prevent infringement of citizens who have to live under the flood of crimes every day. Now that the dictatorship has come to an end, I think it is time to “change the idea of looking at the country.” In the end, while thoroughly guaranteeing the personal rights of suspects through the interrogation system(warrant substantive examination system) before arrest, it should be rejected to condemn or downplay the role(criminal investigation and prosecution) of investigative agencies for crime victims. This is why criminal proceedings should be centered on the two core values of “maintenance of the public interest of society” and “guarantee of individual human rights of citizens”.
{"title":"A Critical Review on the Introduction of the Pre-Interrogation System for Seizure and Search Warrants","authors":"Oung-Seok Jeong","doi":"10.34222/kdps.2023.15.1.23","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.1.23","url":null,"abstract":"The court administration seems to be pushing to revise the criminal procedure rules in a way that allows the court to interrogate suspects and other related parties before issuing a search warrant. For the reason for the revision, seizure and search of electronic information are highly likely to infringe on privacy, freedom, and self-determination of information due to the nature of electronic information, so it is necessary to improve seizure and search practice in order to comply with the principle of screening and ensure the parties' participation in the procedure. Of course, it is difficult to denigrate the intention of the amendment to strengthen the protection of the basic rights of the people by strictly regulating the excessive seizure and search of investigative agencies. However, even if only the world's most advanced human rights protection system is collected and incorporated into our legislation, it would be difficult to evaluate it as a truly reasonable system if it excessively hinders the discovery of the truth or the legitimate purpose of the investigation procedure. \u0000Besides, the purpose of the revision of the Criminal Procedure Rules is not simply to regulate the seizure and search warrant issuance procedures of district court judges, but to restrict the seizure and search procedures more strictly than originally planned. The revision may not seem to directly infringe on the basic rights of suspects or detainees, but it is difficult to conclude that if a warrant is issued by proceeding with a new procedure, it may result in infringement of the basic rights of suspects or detainees according to an unscheduled procedure. \u0000In the 70th year of the Criminal Procedure Act, the constitutional consciousness that the sovereignty of the Republic of Korea lies with the people and all power comes from the people, is not the only issue of how to protect the people from state power (freedom from state) but now it is time to discuss and legislate. In other words, it is time to discuss victim-centered justice, which focuses on “minimizing misfortune” rather than “maximizing happiness,” aside from the question of how to control the fear of expanding public power. This is because as long as state power is viewed only as an infringer, it is difficult to prevent infringement of citizens who have to live under the flood of crimes every day. Now that the dictatorship has come to an end, I think it is time to “change the idea of looking at the country.” \u0000In the end, while thoroughly guaranteeing the personal rights of suspects through the interrogation system(warrant substantive examination system) before arrest, it should be rejected to condemn or downplay the role(criminal investigation and prosecution) of investigative agencies for crime victims. This is why criminal proceedings should be centered on the two core values of “maintenance of the public interest of society” and “guarantee of individual human rights of citizens”.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131118834","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-31DOI: 10.34222/kdps.2023.15.1.1
Tae-Soo Kim
In the case of voluntary accompanying or arrest by an investigative agency, certain facts or rights are required to be notified so that the accompanying person does not interfere with the safety, condition, or future exercise of defense rights, and the notified person is prescribed at each stage of criminal proceedings. In this way, notifying a person who has a certain relationship with the companion is to secure the principle of disclosure of criminal proceedings and the legitimacy of criminal proceedings. However, in the case of voluntary accompanying, it is not reasonable to stipulate that only the police officer's job execution law is notified and not stipulated in other laws. Therefore, even in the case of voluntary accompanying, the freedom of the companion's body is limited, so in order to guarantee the right to defend, it must be revised to notify the subject such as personal arrest. The person who has received the notification must be able to claim various rights, etc. for the parties. However, it is unreasonable because the subject of the notification and the claimant do not currently match. The subjects of the current notification are “lawyers, legal representatives, spouses, immediate relatives, siblings,” and “family members, cohabitants, and employers” can only request arrest, binding pride, or bail. This should be viewed as an inconsistent problem of the subject of notification or the claimant. The subject of the notification is to guarantee the party's right to defend, so it is necessary to expand the scope. If there is a lawyer, the scope of the subject should be notified to the lawyer, and in the case of minors, etc., the legal representative should be notified, and in the case of marriage, the spouse should be notified. Next, relatives should also be revised to be the subject of notification. In addition, since there is no person to notify, the person behind the fact-marriage or foreign worker must notify the cohabitant, and it is reasonable to revise it to notify the employer in case there is no cohabitant. It is considered that the subject of the notification is reasonable to amend to 'lawyers, legal representatives, spouses, relatives, cohabitants, and employers'.
{"title":"Problems and improvement measures on the scope of notification targets and rights holders in criminal proceedings","authors":"Tae-Soo Kim","doi":"10.34222/kdps.2023.15.1.1","DOIUrl":"https://doi.org/10.34222/kdps.2023.15.1.1","url":null,"abstract":"In the case of voluntary accompanying or arrest by an investigative agency, certain facts or rights are required to be notified so that the accompanying person does not interfere with the safety, condition, or future exercise of defense rights, and the notified person is prescribed at each stage of criminal proceedings. In this way, notifying a person who has a certain relationship with the companion is to secure the principle of disclosure of criminal proceedings and the legitimacy of criminal proceedings. \u0000However, in the case of voluntary accompanying, it is not reasonable to stipulate that only the police officer's job execution law is notified and not stipulated in other laws. Therefore, even in the case of voluntary accompanying, the freedom of the companion's body is limited, so in order to guarantee the right to defend, it must be revised to notify the subject such as personal arrest. The person who has received the notification must be able to claim various rights, etc. for the parties. However, it is unreasonable because the subject of the notification and the claimant do not currently match. The subjects of the current notification are “lawyers, legal representatives, spouses, immediate relatives, siblings,” and “family members, cohabitants, and employers” can only request arrest, binding pride, or bail. This should be viewed as an inconsistent problem of the subject of notification or the claimant. The subject of the notification is to guarantee the party's right to defend, so it is necessary to expand the scope. \u0000If there is a lawyer, the scope of the subject should be notified to the lawyer, and in the case of minors, etc., the legal representative should be notified, and in the case of marriage, the spouse should be notified. Next, relatives should also be revised to be the subject of notification. In addition, since there is no person to notify, the person behind the fact-marriage or foreign worker must notify the cohabitant, and it is reasonable to revise it to notify the employer in case there is no cohabitant. It is considered that the subject of the notification is reasonable to amend to 'lawyers, legal representatives, spouses, relatives, cohabitants, and employers'.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"19 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126828098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-31DOI: 10.34222/kdps.2022.14.4.1
Han-Kyun Kim
This essay aims to review the criminal justice data from the point of digitalization of the criminal justice process and electronic criminal trial, which is to be put into practice by the year of 2024. The Act on Promotion of the Digitalization of the Criminal Justice System of 2010, amended in 2021 has been enacted to achieve promptness, fairness and transparency in a criminal justice procedure by promoting the digitalization of the criminal justice procedure and to contribute to the extension of citizens’ rights and interests by improving services to citizens in the area of criminal justice. In related to the 2020 Act, the new Act on the Use of Electronic Documents in the Criminal Justice System of 2021 was enacted to implement electronic criminal trial. The term “criminal justice information” means any information that is generated, acquired, or managed by a criminal justice agency through a criminal justice information system in relation to the conduct of criminal justice affairs, and that is expressed in the form of codes, letters, voice, sound, images by means of electronic processing, and the term “criminal justice information system” means an electronic management system built on combining hardware, software, databases, networks, security components, etc. for the use by a criminal justice agency to generate, acquire, store, transmit, or receive criminal justice information. When the criminal justice information are digitalized, they will be “Criminal Justice Data”, which will be the basis of digital criminal justice. For the digitalization of criminal justice process, criminal justice agencies have both duty to cooperate for stable operation of systems, and duty to cooperate in joint use of information. The keys to the successful implementation of digital criminal justice system and the development of the future electronic criminal trial are the organization of cooperative system for the Criminal Justice Information System, and the promotion of attentionability to human rights and security in the matters of criminal justice data.
{"title":"Digitalization of the Criminal Procedure and Criminal Justice Data","authors":"Han-Kyun Kim","doi":"10.34222/kdps.2022.14.4.1","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.4.1","url":null,"abstract":"This essay aims to review the criminal justice data from the point of digitalization of the criminal justice process and electronic criminal trial, which is to be put into practice by the year of 2024. \u0000The Act on Promotion of the Digitalization of the Criminal Justice System of 2010, amended in 2021 has been enacted to achieve promptness, fairness and transparency in a criminal justice procedure by promoting the digitalization of the criminal justice procedure and to contribute to the extension of citizens’ rights and interests by improving services to citizens in the area of criminal justice. In related to the 2020 Act, the new Act on the Use of Electronic Documents in the Criminal Justice System of 2021 was enacted to implement electronic criminal trial. \u0000The term “criminal justice information” means any information that is generated, acquired, or managed by a criminal justice agency through a criminal justice information system in relation to the conduct of criminal justice affairs, and that is expressed in the form of codes, letters, voice, sound, images by means of electronic processing, and the term “criminal justice information system” means an electronic management system built on combining hardware, software, databases, networks, security components, etc. for the use by a criminal justice agency to generate, acquire, store, transmit, or receive criminal justice information. When the criminal justice information are digitalized, they will be “Criminal Justice Data”, which will be the basis of digital criminal justice. \u0000For the digitalization of criminal justice process, criminal justice agencies have both duty to cooperate for stable operation of systems, and duty to cooperate in joint use of information. The keys to the successful implementation of digital criminal justice system and the development of the future electronic criminal trial are the organization of cooperative system for the Criminal Justice Information System, and the promotion of attentionability to human rights and security in the matters of criminal justice data.","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123582102","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-31DOI: 10.34222/kdps.2022.14.4.163
Seung-Yun Chung
There were many controversies and conflicts regarding the police department established under the Minister of Public Administration and Security, and the constitutionality and legitimacy of the police department, which emerged as the main issue of the controversy, was examined in terms of the principle of popular sovereignty, principles of the administration of the rule of law, and Administrative organization legalism. Since all administrative rights of the Republic of Korea are part of the sovereignty delegated by the people, its legitimacy is based on the principle of popular sovereignty and constitution, and all executive rights belong to the president because the current constitution defines the subject of executive power as the president. Since the police authority is included as part of the executive authority and belongs to the president according to the constitution, its legitimacy is based on the executive authority of the president born from the principle of popular sovereignty. And according to the Constitution, the executive powers of the President shall be executed by the Prime Minister and the heads of administrative departments who are members of the State Council under the order of the President with or without deliberation by the State Council. Since police authority is also part of the executive authority of the President, the President, the Prime Minister and the Minister of Public Administration and Security can direct and supervise the exercise of authority by the Commissioner General and public officials under his control in ordinary cases, and in an emergency, delegate authority to the police chief and public officials under his jurisdiction. Therefore, since the establishment of an administrative agency to assist the authority of the President, Prime Minister, and the Minister of Public Administration and Security is constitutional, the police department under the Minister of Public Administration and Security is a constitutional. On the other hand, there is a view that the establishment of the National Police Agency is presented as a basis for the independence of the police, arguing that the police department violates the independence of the police. Police independence is a concept that does not exist under the Constitution and is a political slogan. The National Police Agency is an external office established in consideration of the uniqueness of the administration and is only one of the current 18 external offices, not an independent external office composed of the remaining 17 offices and other constitutional principles. Although there is controversy in terms of strengthening the political neutrality of the police, The police department in Ministry of Public Administration and Security, through consultations between the National Police Agency Commissioner and the Minister of Public Administration and Security, and the final settlement of the President of the police personnel in the police department centered on the p
{"title":"A Study on the legal matter of the police department in Ministry of Public Administration and Security","authors":"Seung-Yun Chung","doi":"10.34222/kdps.2022.14.4.163","DOIUrl":"https://doi.org/10.34222/kdps.2022.14.4.163","url":null,"abstract":"There were many controversies and conflicts regarding the police department established under the Minister of Public Administration and Security, and the constitutionality and legitimacy of the police department, which emerged as the main issue of the controversy, was examined in terms of the principle of popular sovereignty, principles of the administration of the rule of law, and Administrative organization legalism. Since all administrative rights of the Republic of Korea are part of the sovereignty delegated by the people, its legitimacy is based on the principle of popular sovereignty and constitution, and all executive rights belong to the president because the current constitution defines the subject of executive power as the president. \u0000Since the police authority is included as part of the executive authority and belongs to the president according to the constitution, its legitimacy is based on the executive authority of the president born from the principle of popular sovereignty. And according to the Constitution, the executive powers of the President shall be executed by the Prime Minister and the heads of administrative departments who are members of the State Council under the order of the President with or without deliberation by the State Council. Since police authority is also part of the executive authority of the President, the President, the Prime Minister and the Minister of Public Administration and Security can direct and supervise the exercise of authority by the Commissioner General and public officials under his control in ordinary cases, and in an emergency, delegate authority to the police chief and public officials under his jurisdiction. Therefore, since the establishment of an administrative agency to assist the authority of the President, Prime Minister, and the Minister of Public Administration and Security is constitutional, the police department under the Minister of Public Administration and Security is a constitutional. \u0000On the other hand, there is a view that the establishment of the National Police Agency is presented as a basis for the independence of the police, arguing that the police department violates the independence of the police. Police independence is a concept that does not exist under the Constitution and is a political slogan. The National Police Agency is an external office established in consideration of the uniqueness of the administration and is only one of the current 18 external offices, not an independent external office composed of the remaining 17 offices and other constitutional principles. Although there is controversy in terms of strengthening the political neutrality of the police, The police department in Ministry of Public Administration and Security, through consultations between the National Police Agency Commissioner and the Minister of Public Administration and Security, and the final settlement of the President of the police personnel in the police department centered on the p","PeriodicalId":384688,"journal":{"name":"The Korean Association of Criminal Procedure Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129333994","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：