국문요약 ···············································································1
❘제1부❘서론 ···································································41
1. 문제의 제기와 연구의 기본구상·····································································43
2. 연구의 방법과 개요·························································································45
3. 범례··················································································································46
❘제2부❘독일통일과 형법통합·········································49
제1장 실체형법의 통합과 구동독 형법의 평가···········································51
제1절 문제의 제기와 연구개요········································································53
1. 연구의 방법론적 관점·····················································································53
2. 연구의 개요·····································································································55
제2절 독일통일을 이루기 위한 헌법적 선택가능성들····································55
1. 기본법에 따른 선택가능성들··········································································56
가. “편입”(기본법 제23조 제2문) ··································································56
나. “헌법제정”(기본법 제146조) ····································································57
2. 대안적 통일 모델····························································································58
가. 계약공동체 또는 국가연합·······································································58
나. 다양한 헌법적 절차의 결합·····································································60
3. 통일의 기초로서 구동독 헌법········································································60
4. 독일통일의 실현······························································································61
제3절 독일통일 이후의 형법············································································63
1. 법적 통합을 위한 선택가능성들·····································································63
가. 확장···········································································································64
나. 효력의 분할·······························································································64
다. 종합···········································································································65
2. 형법 통합의 실행····························································································65
가. 확장···········································································································65
나. 효력의 분할·······························································································66
다. 종합···········································································································69
3. 중간요약 및 이후 접근방식에 대한 전망······················································70
제4절 형법총칙··································································································71
1. 형법의 원칙들··································································································71
가. 법치국가원칙·····························································································71
나. “사회주의적 법률주의” ·············································································73
다. 실질적 범죄 개념·····················································································73
2. 범죄이론···········································································································76
가. 구동독의 법적 상황··················································································76
1) 책임······································································································76
2) 고의······································································································78
3) 과실······································································································79
나. 독일연방공화국의 법적 상황 ·································································80
1) 책임······································································································80
2) 고의······································································································82
3) 과실······································································································83
다. 평가···········································································································84
3. 정당화사유와 면책사유···················································································85
가. 구동독의 법적 상황 ················································································85
나. 독일연방공화국의 법적 상황···································································88
다. 평가···········································································································90
4. 미수··················································································································91
가. 구동독의 법적 상황··················································································91
나. 독일연방공화국의 법적 상황···································································93
다. 평가···········································································································95
5. 정범과 공범·····································································································96
가. 구동독의 법적 상황··················································································96
나. 독일연방공화국의 법적 상황···································································99
다. 평가·········································································································101
6. 형법적용법·····································································································102
가. 구동독의 법적 상황 ··············································································102
나. 독일연방공화국의 법적 상황 ·······························································104
다. 평가 ·······································································································105
7. 총칙에 관한 요약··························································································106
제5절 형법각칙································································································107
1. 국제형법·········································································································108
가. 구동독의 법적 상황···············································································108
나. 독일연방공화국의 법적 상황·································································111
다. 평가·········································································································112
2. 국가보호형법·································································································114
가. 구동독의 법적 상황···············································································114
나. 독일연방공화국의 법적 상황·································································116
다. 평가·········································································································118
3. “인격에 대한 범죄” ·······················································································119
가. 구동독의 법적 상황···············································································119
나. 독일연방공화국의 법적 상황·································································121
다. 평가·········································································································123
4. “청소년과 가족에 대한 범죄” ······································································123
가. 구동독의 법적 상황···············································································123
나. 독일연방공화국의 법적 상황·································································126
다. 평가·········································································································128
5. 재산범죄와 경제범죄·····················································································130
가. 구동독의 법적 상황···············································································130
나. 독일연방공화국의 법적 상황·································································133
다. 평가·········································································································135
6. “일반 안전에 대한 범죄···············································································136
가. 구동독의 법적 상황···············································································136
나. 독일연방공화국의 법적 상황·································································138
다. 평가·········································································································139
7. “국가 질서에 대한 범죄” ··············································································140
가. 구동독의 법적 상황···············································································140
나. 독일연방공화국의 법적 상황·································································142
8. 군사범죄·········································································································144
9. 각칙에 대한 요약··························································································146
제6절 요약 및 결론························································································147
제2장 형사제재분야의 통합과 구동독 형사제재체계의 평가····················149
제1절 서론: 형법적 제재와 비형법적 제재의 구별······································151
제2절 형법전에 따른 형벌목적들··································································152
제3절 구동독의 형사제재체계········································································153
1. 일반규정·········································································································155
가. 원상회복의무(구동독 형법 제24조) ······················································155
나. 처분의 면제····························································································156
다. 사회적 범죄예방·····················································································157
라. 의료적 범죄예방·····················································································157
2. 사회적 법원의 처분······················································································159
3. 자유박탈 없는 형벌······················································································161
가. 유예선고(구동독 형법 제33조) ······························································162
나. 공적 비난(구동독 형법 제37조) ····························································163
다. 벌금형(구동독 형법 제36조) ·································································164
라. 보증(구동독 형법 제31조) ·····································································164
4. 자유박탈 형벌································································································166
가. 자유형·····································································································167
나. 구금형·····································································································169
5. 사형················································································································170
6. 누범에 대한 제재··························································································171
7. 재활 및 사회복귀 처분·················································································172
8. 부가형과 추방································································································173
9. 사면, 금전을 대가로 한 석방······································································174
제4절 양형·······································································································176
제5절 비형법적 제재와 범죄에 대한 투쟁····················································179
1. 국가안전부의 통제························································································179
2. 국민경찰·········································································································181
3. 지역위원회·····································································································181
4. 공장 및 집단작업소······················································································182
5. 비형법적 제재와 범죄투쟁에 대한 종합 평가············································183
제6절 베를린장벽 붕괴와 독일통일 완성 사이의 개혁································183
제7절 독일 통일 이후의 결과········································································185
1. 독일연방공화국 제재법의 수용····································································186
2. 보안감호처분의 적용 배제···········································································186
3. 형법적용법·····································································································187
4. 비무장 국경탈주자 사살 사건 관련 처벌····················································189
5. 예외적인 구동독 법률의 효력 유지·····························································191
6. 공소시효에 관한 특별규정···········································································193
7. 구동독 판사・검사의 법왜곡죄 처벌·····························································195
8. 수용시설 내 수용자학대행위에 대한 처벌··················································195
9. 새 연방주(구동독)의 보호관찰제도 구축·····················································196
10. 불법자유박탈 등에 대한 형사보상(복권법) ···············································199
제8절 요약·······································································································199
❘제3부❘통일시대 남북한 형법통합······························201
제1장 남북한 형사실체법 통합의 검토 ·····················································203
제1절 서론·······································································································205
제2절 북한지역 내 발생 범죄의 처리–준거법의 결정·································207
1. 현재의 형사사건의 처리···············································································207
가. 처리규정의 부재·····················································································207
나. 학설의 대립····························································································209
2. 형법의 장소적・인적 적용범위······································································211
가. 우리나라 형법의 사실상의 실효성 회복(현행법) ·································211
나. 원칙·········································································································213
1) 통일 후에 발생한 범죄의 처리························································214
2) 통일 전에 발생한 범죄의 처리························································214
3) 북한 형법의 남한 주민에 대한 적용여부·······································219
4) 개별적인 쟁점들················································································221
3. 형법의 시간적 적용범위·········································································224
가. 통일 후 북한 지역에서 발생한 범죄의 처리·······································225
1) 원칙····································································································225
2) 예외–통일 후 과도기 북한지역 내 발생 범죄의 처리에 대한 유예적
조치 ····································································································226
나. 통일 전 북한 지역에서 발생한 범죄의 처리·······································226
다. 시간적 적용범위와 과거청산의 문제····················································228
1) 소급효금지의 원칙············································································228
2) 공소시효····························································································239
4. 통일대비 형사실체법 통합의 선행조건·······················································244
5. 소결················································································································245
1) 원칙····································································································245
2) 예외····································································································246
제3절 형법총칙의 통합···················································································246
1. 형법의 적용범위····························································································246
2. 죄의 성립·······································································································247
가. 범죄의 성립요건·····················································································247
나. 북한형법상 범죄 개념–“사회적 위험성”의 기능···································249
다. 주관적 구성요건과 관련된 문제–특히 과실범의 처리·························257
라. 위법성 및 책임 조각사유······································································258
1) 위법성조각사유··················································································258
2) 책임조각사유·····················································································261
3) 위법성 및 책임 조각사유와 과거청산의 문제································264
마. 정범과 공범····························································································269
제4절 형법각칙의 통합···················································································275
1. 형벌구성요건의 대응성 내지 대칭성의 문제··············································275
2. 북한 형법에만 규정되어 있는 범죄구성요건들···········································278
3. 개별적인 쟁점································································································278
제5절 결론·······································································································280
제2장 남북한 형법통합을 위한 북한형사제재체계 검토 ···························283
제1절 서론·······································································································285
제2절 북한형법의 형사정책············································································286
1. 형법이론과 형벌론························································································286
2. 계급주의적・이원적 예방형법········································································288
가. ‘범죄의 미연방지원칙’과 예방형법론····················································288
나. 응보형벌의 배제·····················································································289
다. 이원적 예방형벌론·················································································291
3. 일원주의 vs 이원주의 형사제재체계···························································293
가. 적대형법 vs 일반형법(프로레타리아형법) ············································293
나. 형사책임과 예방형법··············································································294
다. 일원주의 vs 이원주의 형사제재체계····················································295
제3절 북한형법의 형사제재············································································296
1. 북한형사제재 개관························································································296
2. 사형················································································································299
3. 자유형············································································································300
4. 재산형············································································································304
가. 벌금형·····································································································304
나. 재산몰수형······························································································306
5. 자격형············································································································307
가. 선거권박탈형···························································································307
나. 자격박탈형・자격정지형··········································································308
6. 사회적교양처분······························································································310
가. 사회적교양처분의 성격과 요건·····························································310
나. 사회적교양처분의 적용절차···································································311
다. 사회적교양처분의 효과와 평가·····························································312
7. 의료처분·········································································································312
8. 남북한 형법의 형사제재체계상의 차이·······················································314
제4절 양형론···································································································315
1. 범죄행위와 범죄자의 위험성········································································315
2. 양형가중사유 및 양형감경사유····································································317
제5절 비형법적 제재를 통한 사회통제·························································318
1. 북한의 행정벌: 행정형벌 및 행정처벌························································318
가. 개관·········································································································318
나. 북한의 행정형벌·····················································································319
다. 북한의 행정처벌·····················································································320
라. 행정처벌의 절차·····················································································320
마. 북한의 행정형벌 및 행정처벌과 ‘법치행정원칙’ ·································321
바. 주민통제의 도구·····················································································321
2. 그 밖의 다양한 사회통제기관과 처분이나 제도·········································322
가. 인민보안성과 북한의 경찰국가성··························································322
나. 비공식적 제재의 활성화? ······································································323
제6절 형사집행론····························································································323
1. 집행유예제도·································································································323
2. 사면················································································································324
3. 형기단축과 만기전 석방···············································································326
4. 형벌집행이 끝난 자의 법적 지위································································326
제7절 남북한 형사제재 통합방안··································································327
❘제4부❘형사사법제도 및 형사사법기관의 통합···········331
제1장 형사사법제도의 통합······································································333
제1절 동서독 형사사법제도 통합··································································335
1. 동서독의 형사사법제도 ···············································································335
2. 동서독 형사사법제도 통합의 평가와 시사점··············································336
제2절 남북한 형사사법제도 통합··································································338
1. 남북한의 형사사법제도·················································································338
가. 형사재판제도···························································································338
나. 변호사제도······························································································340
2. 형사사법제도 통합의 기본원칙과 방향·······················································342
3. 형사사법제도 통합의 절차···········································································346
가. 점진적・단계적 통일의 경우···································································346
나. 급속통일의 경우·····················································································348
4. 형사사법제도 통합의 고려요소····································································349
가. 형사사법제도 정비 지원········································································349
나. 형사사법제도의 한시적 분리 운영························································349
제2장 형사사법기관의 통합······································································353
제1절 동서독 형사사법기관 통합··································································355
1. 동서독의 형사사법기관·················································································355
가. 법원 및 검찰··························································································355
나. 변호사·····································································································356
다. 공안기관··································································································357
2. 동서독 형사사법기관 통합의 평가와 시사점··············································358
제2절 남북한 형사사법기관 통합··································································359
1. 남북한의 형사사법기관·················································································359
가. 법원 및 검찰··························································································359
나. 변호사·····································································································360
다. 공안기관··································································································361
2. 형사사법기관 통합의 기본원칙과 방향·······················································362
3. 형사사법기관 통합의 절차···········································································364
가. 점진적・단계적 통일의 경우···································································364
나. 급속통일의 경우·····················································································366
4. 형사사법기관 통합의 고려요소····································································366
가. 통일 대비 법조인력 및 법률가 사전 양성···········································367
나. 형사사법기관의 한시적 분리 운영························································367
제3장 형사사법제도 및 형사사법기관 통합 관련 과도적 조치 ················369
제1절 한반도 통일과 전환기 정의································································371
1. 전환기 정의의 개념······················································································371
2. 전환기 정의 실행의 고려 요소····································································372
제2절 북한 체제불법의 ICC 회부·································································375
1. 국제사회의 ICC 회부 움직임······································································375
2. ICC 회부의 쟁점과 과제··············································································376
가. 관할대상범죄···························································································377
나. 시간적 관할권·························································································378
다. 관할권 행사 조건···················································································378
라. ICC와 국내 재판소와의 관계·······························································379
제3절 구금・교정시설 재편 및 정치범수용소의 폐지···································380
1. 구금 및 교정시설의 재편·············································································380
가. 구금 및 교정시설 현황··········································································380
나. 구금 및 교정시설 재편의 기본방향 및 고려요소································382
2. 정치범수용소의 폐지·····················································································383
가. 정치범수용소 현황·················································································383
나. 정치범수용소 폐지의 고려요소·····························································384
제4절 전환기 정의를 위한 사전 준비와 국제적 협력·································384
1. 북한인권 기록 보존······················································································385
2. 유엔인권기구 서울사무소와의 협력·····························································388
제4장 결론 및 시사점 ··············································································391
❘제5부❘형사사법절차의 통합: 특수절차의 사례··········395
제1장 구동독의 형사사법절차와 통일 후 전반적 영향·····························399
제1절 구동독 형사사법절차의 특징·······························································401
1. 사회주의 국가와 법 인식·············································································401
2. 구동독의 사법절차와 법치주의 및 당의 관계············································401
3. 국가안전부(Stasi)의 역할·············································································403
제2절 구동독 형사사법절차의 통독 후 부분적 승계 ·································404
1. 승계원인 및 대상··························································································404
가. 승계논의의 대상·····················································································404
나. 통일조약에 의한 효력 인정···································································405
2. 통일 후 구동독 형사사법제도의 적용 근거················································405
제2장 구동독 경미사건처리절차와 절차통합 및 시사점 ···························407
제1절 구동독의 사법절차···············································································409
1. 사법의 국가권력 예속···················································································409
2. 사법기관·········································································································410
가. 구법원·····································································································410
나. 지구법원··································································································410
다. 최고법원··································································································411
제 절 구동독 경미사건 처리 2 규정과 통일 독일의 동 규정 승계···············412
1. 경미범죄의 개념정의에 관한 논란·······························································412
2. 통일 독일의 구동독 경미범죄 규정 수용 및 논의 필요성과 의의···········413
제3절 구동독 일반법원에서의 경미사건 처리··············································415
1. 실체법적 측면································································································415
가. 경미범죄의 비범죄화 내지 특별처리····················································415
나. 동독형법 제1조 및 제3조의 의미와 기능············································417
2. 절차법적 측면································································································420
가. 사회적 법원으로의 이송········································································420
나. 친고죄화··································································································421
다. 약식명령절차(Strafbefehlsverfahren) ·················································421
라. 신속절차의 진행·····················································································422
제4절 사회적 법원··························································································422
1. 개념 및 법적・이념적 근거···········································································422
2. 사회적 법원의 법적 성격·············································································426
3. 조직과 관할사건····························································································426
가. 조직·········································································································426
나. 관할·········································································································427
4. 사회적 법원의 기능······················································································428
가. 형사사법체계의 개편··············································································428
나. 신속한 사건처리·····················································································429
다. 청소년 형사사건의 효과적 처리···························································430
라. 공동체 친화적 사법절차········································································430
5. 사회적 법원에 대한 평가·············································································430
가. 긍정적 평가····························································································431
나. 부정적 평가····························································································431
제5절 통일독일의 경미사건 처리절차에 관한 제도 및 논의······················433
1. 실체법적 영역································································································434
가. 질서위반법의 확장적용··········································································434
나. 사법적 불법행위화·················································································435
다. 위경죄화··································································································436
라. 제재방식의 차별화·················································································436
2. 절차법적 영역································································································436
가. 친고죄화··································································································436
나. 기소법정주의의 배제··············································································437
다. 형사절차의 배제와 중지········································································437
라. 검사의 불기소·························································································438
마. 사인기소의 인정·····················································································439
바. 약식명령절차···························································································439
사. 신속절차··································································································439
제6절 독일통일과 경미사건 처리절차에 관한 시사점·································440
1. 통일 후 여전히 논의 중인 경미범죄 해결 방안········································440
2. 북한의 경미사건 처리제도 평가··································································442
3. 시사점············································································································444
제3장 소년형사사법절차의 통합 ·······························································445
제1절 독일 소년형법의 기본이념과 연혁······················································447
1. 소년형법의 연혁····························································································447
2. 기본이념·········································································································449
제2절 구동독 소년형법의 발전······································································450
1. 구동독의 소년법원법 및 소년법 제정과 특징············································450
가. 실체법적 규정·························································································451
나. 절차법적 규정·························································································451
2. 소년법원법의 폐지························································································452
제3절 구동독의 소년형사사법절차·································································453
1. 구동독의 법과 가족, 청소년 ······································································453
가. 가족·········································································································453
나. 청소년·····································································································454
2. 사회통제의 집행기관·····················································································456
3. 소년보호시설에서의 교육: 시설교육(Heimerziehung) ·····························456
가. 구동독체제 하에서 청소년에 대한 시설교육의 행정체제···················456
나. 아동복지에 대한 위험시 친권박탈························································459
다. 시설교육과 형사절차··············································································460
1) 형사판결에 의한 시설교육 이송······················································460
2) 검사의 청소년지원조직을 통한 이송···············································461
3) 이행명령침해로 인한 이송·······························································461
4) 벌금형 미납으로 인한 시설이송······················································462
5) 법원, 경찰 및 검찰에 의한 임시 시설교육이송·····························462
6) 구금대안으로서의 시설교육······························································462
라. 1968년의 구동독 형법개정과 소년형법의 변화··································462
1) 법원의 이송권 폐지··········································································463
2) 교육조치를 통한 형벌의 면제··························································463
3) 형사책임 결여로 인한 시설교육명령···············································463
마. 교육조치 및 형벌조치············································································464
1) 체벌(Körperliche Züchtigung)과 구금(Arrest) ···························464
2) 집단교육(Kollektiverziehung) ·······················································464
3) 기타 관련 규정·················································································465
바. 시설교육의 통제·····················································································465
제4절 서독의 소년형사사법절차····································································466
1. 실체법적 내용································································································466
가. 교육조치··································································································467
나. 징계수단(Zuchtmittel) ········································································467
다. 형사처벌··································································································468
2. 절차적 내용···································································································468
제5절 통일 후 독일의 소년형법과 구동독 규정의 영향······························469
1. 서 론··············································································································469
2. 1990년의 제1차 소년법원법 개정법률·······················································470
가. ‘가해자-피해자-조정’ ·············································································470
나. 다이버전의 확대·····················································································471
1) 검사의 기소유예················································································471
2) 판사의 공소기각 ··············································································472
다. 부정기형의 수정·····················································································472
라. 사회적 훈련코스(Trainingkurs) ···························································473
3. 동서독 청소년법원법과 현행 독일 청소년법원법의 비교 분석·················473
가. 징계처분··································································································474
1) 경고(Verwarnung) ···········································································474
2) 부과명령(Auflage) ············································································474
3) 소년구금(Jugendarrest) ···································································475
나. 교육조치··································································································475
1) 시설교육····························································································475
다. 청소년형··································································································479
4. 이후의 변화: 2006년 사법현대화법에 따른 개정······································479
제6절 독일통일과 소년사법절차통합의 시사점·············································481
제4장 동・서독 형사사법절차 통합의 시사점 ············································483
❘제6부❘종합적 고찰 및 결론 ·····································489
1. 통일독일의 형법통합과 동서독형법 비교・고찰 ·········································491
2. 동서독 형법총칙분야의 형법통합·································································492
3. 동서독 형법각칙분야의 형법통합·································································494
4. 통일독일의 실체형법 통합에 대한 종합 평가············································495
5. 남북한 실체형법 통합에 관한 고찰·····························································496
6. 형사사법기관・제도의 통합···········································································498
7. 형사사법절차의 통합(특수절차의 사례) ·······················································501
8. 결어: 통일과 형사사법통합의 길·································································502
참고문헌 ··········································································504
Abstract ·········································································528
부록 ················································································535
국문요약 ···············································································1
❘제1부❘서론 ···································································411. 문제의 제기와 연구의 기본구상·····································································432. 연구의 방법과 개요·························································································453. 범례··················································································································46
❘제2부❘독일통일과 형법통합·········································49제1장 실체형법의 통합과 구동독 형법의 평가···········································51제1절 문제의 제기와 연구개요········································································531. 연구의 방법론적 관점·····················································································532. 연구의 개요·····································································································55제2절 독일통일을 이루기 위한 헌법적 선택가능성들····································551. 기본법에 따른 선택가능성들··········································································56가. “편입”(기본법 제23조 제2문) ··································································56나. “헌법제정”(기본법 제146조) ····································································572. 대안적 통일 모델····························································································58가. 계약공동체 또는 국가연합·······································································58나. 다양한 헌법적 절차의 결합·····································································603. 통일의 기초로서 구동독 헌법········································································604. 독일통일의 실현······························································································61제3절 독일통일 이후의 형법············································································631. 법적 통합을 위한 선택가능성들·····································································63가. 확장···········································································································64나. 효력의 분할·······························································································64다. 종합···········································································································652. 형법 통합의 실행····························································································65가. 확장···········································································································65나. 효력의 분할·······························································································66다. 종합···········································································································693. 중간요약 및 이후 접근방식에 대한 전망······················································70제4절 형법총칙··································································································711. 형법의 원칙들··································································································71가. 법치국가원칙·····························································································71나. “사회주의적 법률주의” ·············································································73다. 실질적 범죄 개념·····················································································732. 범죄이론···········································································································76가. 구동독의 법적 상황··················································································761) 책임······································································································762) 고의······································································································783) 과실······································································································79나. 독일연방공화국의 법적 상황 ·································································801) 책임······································································································802) 고의······································································································823) 과실······································································································83다. 평가···········································································································843. 정당화사유와 면책사유···················································································85가. 구동독의 법적 상황 ················································································85나. 독일연방공화국의 법적 상황···································································88다. 평가···········································································································904. 미수··················································································································91가. 구동독의 법적 상황··················································································91나. 독일연방공화국의 법적 상황···································································93다. 평가···········································································································955. 정범과 공범·····································································································96가. 구동독의 법적 상황··················································································96나. 독일연방공화국의 법적 상황···································································99다. 평가·········································································································1016. 형법적용법·····································································································102가. 구동독의 법적 상황 ··············································································102나. 독일연방공화국의 법적 상황 ·······························································104다. 평가 ·······································································································1057. 총칙에 관한 요약··························································································106제5절 형법각칙································································································1071. 국제형법·········································································································108가. 구동독의 법적 상황···············································································108나. 독일연방공화국의 법적 상황·································································111다. 평가·········································································································1122. 국가보호형법·································································································114가. 구동독의 법적 상황···············································································114나. 독일연방공화국의 법적 상황·································································116다. 평가·········································································································1183. “인격에 대한 범죄” ·······················································································119가. 구동독의 법적 상황···············································································119나. 독일연방공화국의 법적 상황·································································121다. 평가·········································································································1234. “청소년과 가족에 대한 범죄” ······································································123가. 구동독의 법적 상황···············································································123나. 독일연방공화국의 법적 상황·································································126다. 평가·········································································································1285. 재산범죄와 경제범죄·····················································································130가. 구동독의 법적 상황···············································································130나. 독일연방공화국의 법적 상황·································································133다. 평가·········································································································1356. “일반 안전에 대한 범죄···············································································136가. 구동독의 법적 상황···············································································136나. 독일연방공화국의 법적 상황·································································138다. 평가·········································································································1397. “국가 질서에 대한 범죄” ··············································································140가. 구동독의 법적 상황···············································································140나. 독일연방공화국의 법적 상황·································································1428. 군사범죄·········································································································1449. 각칙에 대한 요약··························································································146제6절 요약 및 결론························································································147제2장 형사제재분야의 통합과 구동독 형사제재체계의 평가····················149제1절 서론: 형법적 제재와 비형법적 제재의 구별······································151제2절 형법전에 따른 형벌목적들··································································152제3절 구동독의 형사제재체계········································································1531. 일반규정·········································································································155가. 원상회복의무(구동독 형법 제24조) ······················································155나. 처분의 면제····························································································156다. 사회적 범죄예방·····················································································157라. 의료적 범죄예방·····················································································1572. 사회적 법원의 처분······················································································1593. 자유박탈 없는 형벌······················································································161가. 유예선고(구동독 형법 제33조) ······························································162나. 공적 비난(구동독 형법 제37조) ····························································163다. 벌금형(구동독 형법 제36조) ·································································164라. 보증(구동독 형법 제31조) ·····································································1644. 자유박탈 형벌································································································166가. 자유형·····································································································167나. 구금형·····································································································1695. 사형················································································································1706. 누범에 대한 제재··························································································1717. 재활 및 사회복귀 처분·················································································1728. 부가형과 추방································································································1739. 사면, 금전을 대가로 한 석방······································································174제4절 양형·······································································································176제5절 비형법적 제재와 범죄에 대한 투쟁····················································1791. 국가안전부의 통제························································································1792. 국민경찰·········································································································1813. 지역위원회·····································································································1814. 공장 및 집단작업소······················································································1825. 비형법적 제재와 범죄투쟁에 대한 종합 평가············································183제6절 베를린장벽 붕괴와 독일통일 완성 사이의 개혁································183제7절 독일 통일 이후의 결과········································································1851. 독일연방공화국 제재법의 수용····································································1862. 보안감호처분의 적용 배제···········································································1863. 형법적용법·····································································································1874. 비무장 국경탈주자 사살 사건 관련 처벌····················································1895. 예외적인 구동독 법률의 효력 유지·····························································1916. 공소시효에 관한 특별규정···········································································1937. 구동독 판사・검사의 법왜곡죄 처벌·····························································1958. 수용시설 내 수용자학대행위에 대한 처벌··················································1959. 새 연방주(구동독)의 보호관찰제도 구축·····················································19610. 불법자유박탈 등에 대한 형사보상(복권법) ···············································199제8절 요약·······································································································199
❘제3부❘통일시대 남북한 형법통합······························201제1장 남북한 형사실체법 통합의 검토 ·····················································203제1절 서론·······································································································205제2절 북한지역 내 발생 범죄의 처리–준거법의 결정·································2071. 현재의 형사사건의 처리···············································································207가. 처리규정의 부재·····················································································207나. 학설의 대립····························································································2092. 형법의 장소적・인적 적용범위······································································211가. 우리나라 형법의 사실상의 실효성 회복(현행법) ·································211나. 원칙·········································································································2131) 통일 후에 발생한 범죄의 처리························································2142) 통일 전에 발생한 범죄의 처리························································2143) 북한 형법의 남한 주민에 대한 적용여부·······································2194) 개별적인 쟁점들················································································2213. 형법의 시간적 적용범위·········································································224가. 통일 후 북한 지역에서 발생한 범죄의 처리·······································2251) 원칙····································································································2252) 예외–통일 후 과도기 북한지역 내 발생 범죄의 처리에 대한 유예적조치 ····································································································226나. 통일 전 북한 지역에서 발생한 범죄의 처리·······································226다. 시간적 적용범위와 과거청산의 문제····················································2281) 소급효금지의 원칙············································································2282) 공소시효····························································································2394. 통일대비 형사실체법 통합의 선행조건·······················································2445. 소결················································································································2451) 원칙····································································································2452) 예외····································································································246제3절 형법총칙의 통합···················································································2461. 형법의 적용범위····························································································2462. 죄의 성립·······································································································247가. 범죄의 성립요건·····················································································247나. 북한형법상 범죄 개념–“사회적 위험성”의 기능···································249다. 주관적 구성요건과 관련된 문제–특히 과실범의 처리·························257라. 위법성 및 책임 조각사유······································································2581) 위법성조각사유··················································································2582) 책임조각사유·····················································································2613) 위법성 및 책임 조각사유와 과거청산의 문제································264마. 정범과 공범····························································································269제4절 형법각칙의 통합···················································································2751. 형벌구성요건의 대응성 내지 대칭성의 문제··············································2752. 북한 형법에만 규정되어 있는 범죄구성요건들···········································2783. 개별적인 쟁점································································································278제5절 결론·······································································································280제2장 남북한 형법통합을 위한 북한형사제재체계 검토 ···························283제1절 서론·······································································································285제2절 북한형법의 형사정책············································································2861. 형법이론과 형벌론························································································2862. 계급주의적・이원적 예방형법········································································288가. ‘범죄의 미연방지원칙’과 예방형법론····················································288나. 응보형벌의 배제·····················································································289다. 이원적 예방형벌론·················································································2913. 일원주의 vs 이원주의 형사제재체계···························································293가. 적대형법 vs 일반형법(프로레타리아형법) ············································293나. 형사책임과 예방형법··············································································294다. 일원주의 vs 이원주의 형사제재체계····················································295제3절 북한형법의 형사제재············································································2961. 북한형사제재 개관························································································2962. 사형················································································································2993. 자유형············································································································3004. 재산형············································································································304가. 벌금형·····································································································304나. 재산몰수형······························································································3065. 자격형············································································································307가. 선거권박탈형···························································································307나. 자격박탈형・자격정지형··········································································3086. 사회적교양처분······························································································310가. 사회적교양처분의 성격과 요건·····························································310나. 사회적교양처분의 적용절차···································································311다. 사회적교양처분의 효과와 평가·····························································3127. 의료처분·········································································································3128. 남북한 형법의 형사제재체계상의 차이·······················································314제4절 양형론···································································································3151. 범죄행위와 범죄자의 위험성········································································3152. 양형가중사유 및 양형감경사유····································································317제5절 비형법적 제재를 통한 사회통제·························································3181. 북한의 행정벌: 행정형벌 및 행정처벌························································318가. 개관·········································································································318나. 북한의 행정형벌·····················································································319다. 북한의 행정처벌·····················································································320라. 행정처벌의 절차·····················································································320마. 북한의 행정형벌 및 행정처벌과 ‘법치행정원칙’ ·································321바. 주민통제의 도구·····················································································3212. 그 밖의 다양한 사회통제기관과 처분이나 제도·········································322가. 인민보안성과 북한의 경찰국가성··························································322나. 비공식적 제재의 활성화? ······································································323제6절 형사집행론····························································································3231. 집행유예제도·································································································3232. 사면················································································································3243. 형기단축과 만기전 석방···············································································3264. 형벌집행이 끝난 자의 법적 지위································································326제7절 남북한 형사제재 통합방안··································································327
❘제4부❘형사사법제도 및 형사사법기관의 통합···········331제1장 형사사법제도의 통합······································································333제1절 동서독 형사사법제도 통합··································································3351. 동서독의 형사사법제도 ···············································································3352. 동서독 형사사법제도 통합의 평가와 시사점··············································336제2절 남북한 형사사법제도 통합··································································3381. 남북한의 형사사법제도·················································································338가. 형사재판제도···························································································338나. 변호사제도······························································································3402. 형사사법제도 통합의 기본원칙과 방향·······················································3423. 형사사법제도 통합의 절차···········································································346가. 점진적・단계적 통일의 경우···································································346나. 급속통일의 경우·····················································································3484. 형사사법제도 통합의 고려요소····································································349가. 형사사법제도 정비 지원········································································349나. 형사사법제도의 한시적 분리 운영························································349제2장 형사사법기관의 통합······································································353제1절 동서독 형사사법기관 통합··································································3551. 동서독의 형사사법기관·················································································355가. 법원 및 검찰··························································································355나. 변호사·····································································································356다. 공안기관··································································································3572. 동서독 형사사법기관 통합의 평가와 시사점··············································358제2절 남북한 형사사법기관 통합··································································3591. 남북한의 형사사법기관·················································································359가. 법원 및 검찰··························································································359나. 변호사·····································································································360다. 공안기관··································································································3612. 형사사법기관 통합의 기본원칙과 방향·······················································3623. 형사사법기관 통합의 절차···········································································364가. 점진적・단계적 통일의 경우···································································364나. 급속통일의 경우·····················································································3664. 형사사법기관 통합의 고려요소····································································366가. 통일 대비 법조인력 및 법률가 사전 양성···········································367나. 형사사법기관의 한시적 분리 운영························································367제3장 형사사법제도 및 형사사법기관 통합 관련 과도적 조치 ················369제1절 한반도 통일과 전환기 정의································································3711. 전환기 정의의 개념······················································································3712. 전환기 정의 실행의 고려 요소····································································372제2절 북한 체제불법의 ICC 회부·································································3751. 국제사회의 ICC 회부 움직임······································································3752. ICC 회부의 쟁점과 과제··············································································376가. 관할대상범죄···························································································377나. 시간적 관할권·························································································378다. 관할권 행사 조건···················································································378라. ICC와 국내 재판소와의 관계·······························································379제3절 구금・교정시설 재편 및 정치범수용소의 폐지···································3801. 구금 및 교정시설의 재편·············································································380가. 구금 및 교정시설 현황··········································································380나. 구금 및 교정시설 재편의 기본방향 및 고려요소································3822. 정치범수용소의 폐지·····················································································383가. 정치범수용소 현황·················································································383나. 정치범수용소 폐지의 고려요소·····························································384제4절 전환기 정의를 위한 사전 준비와 국제적 협력·································3841. 북한인권 기록 보존······················································································3852. 유엔인권기구 서울사무소와의 협력·····························································388제4장 결론 및 시사점 ··············································································391
❘제5부❘형사사법절차의 통합: 특수절차의 사례··········395제1장 구동독의 형사사법절차와 통일 후 전반적 영향·····························399제1절 구동독 형사사법절차의 특징·······························································4011. 사회주의 국가와 법 인식·············································································4012. 구동독의 사법절차와 법치주의 및 당의 관계············································4013. 국가안전부(Stasi)의 역할·············································································403제2절 구동독 형사사법절차의 통독 후 부분적 승계 ·································4041. 승계원인 및 대상··························································································404가. 승계논의의 대상·····················································································404나. 통일조약에 의한 효력 인정···································································4052. 통일 후 구동독 형사사법제도의 적용 근거················································405제2장 구동독 경미사건처리절차와 절차통합 및 시사점 ···························407제1절 구동독의 사법절차···············································································4091. 사법의 국가권력 예속···················································································4092. 사법기관·········································································································410가. 구법원·····································································································410나. 지구법원··································································································410다. 최고법원··································································································411제 절 구동독 경미사건 처리 2 규정과 통일 독일의 동 규정 승계···············4121. 경미범죄의 개념정의에 관한 논란·······························································4122. 통일 독일의 구동독 경미범죄 규정 수용 및 논의 필요성과 의의···········413제3절 구동독 일반법원에서의 경미사건 처리··············································4151. 실체법적 측면································································································415가. 경미범죄의 비범죄화 내지 특별처리····················································415나. 동독형법 제1조 및 제3조의 의미와 기능············································4172. 절차법적 측면································································································420가. 사회적 법원으로의 이송········································································420나. 친고죄화··································································································421다. 약식명령절차(Strafbefehlsverfahren) ·················································421라. 신속절차의 진행·····················································································422제4절 사회적 법원··························································································4221. 개념 및 법적・이념적 근거···········································································4222. 사회적 법원의 법적 성격·············································································4263. 조직과 관할사건····························································································426가. 조직·········································································································426나. 관할·········································································································4274. 사회적 법원의 기능······················································································428가. 형사사법체계의 개편··············································································428나. 신속한 사건처리·····················································································429다. 청소년 형사사건의 효과적 처리···························································430라. 공동체 친화적 사법절차········································································4305. 사회적 법원에 대한 평가·············································································430가. 긍정적 평가····························································································431나. 부정적 평가····························································································431제5절 통일독일의 경미사건 처리절차에 관한 제도 및 논의······················4331. 실체법적 영역································································································434가. 질서위반법의 확장적용··········································································434나. 사법적 불법행위화·················································································435다. 위경죄화··································································································436라. 제재방식의 차별화·················································································4362. 절차법적 영역································································································436가. 친고죄화··································································································436나. 기소법정주의의 배제··············································································437다. 형사절차의 배제와 중지········································································437라. 검사의 불기소·························································································438마. 사인기소의 인정·····················································································439바. 약식명령절차···························································································439사. 신속절차··································································································439제6절 독일통일과 경미사건 처리절차에 관한 시사점·································4401. 통일 후 여전히 논의 중인 경미범죄 해결 방안········································4402. 북한의 경미사건 처리제도 평가··································································4423. 시사점············································································································444제3장 소년형사사법절차의 통합 ·······························································445제1절 독일 소년형법의 기본이념과 연혁······················································4471. 소년형법의 연혁····························································································4472. 기본이념·········································································································449제2절 구동독 소년형법의 발전······································································4501. 구동독의 소년법원법 및 소년법 제정과 특징············································450가. 실체법적 규정·························································································451나. 절차법적 규정·························································································4512. 소년법원법의 폐지························································································452제3절 구동독의 소년형사사법절차·································································4531. 구동독의 법과 가족, 청소년 ······································································453가. 가족·········································································································453나. 청소년·····································································································4542. 사회통제의 집행기관·····················································································4563. 소년보호시설에서의 교육: 시설교육(Heimerziehung) ·····························456가. 구동독체제 하에서 청소년에 대한 시설교육의 행정체제···················456나. 아동복지에 대한 위험시 친권박탈························································459다. 시설교육과 형사절차··············································································4601) 형사판결에 의한 시설교육 이송······················································4602) 검사의 청소년지원조직을 통한 이송···············································4613) 이행명령침해로 인한 이송·······························································4614) 벌금형 미납으로 인한 시설이송······················································4625) 법원, 경찰 및 검찰에 의한 임시 시설교육이송·····························4626) 구금대안으로서의 시설교육······························································462라. 1968년의 구동독 형법개정과 소년형법의 변화··································4621) 법원의 이송권 폐지··········································································4632) 교육조치를 통한 형벌의 면제··························································4633) 형사책임 결여로 인한 시설교육명령···············································463마. 교육조치 및 형벌조치············································································4641) 체벌(Körperliche Züchtigung)과 구금(Arrest) ···························4642) 집단교육(Kollektiverziehung) ·······················································4643) 기타 관련 규정·················································································465바. 시설교육의 통제·····················································································465제4절 서독의 소년형사사법절차····································································4661. 실체법적 내용································································································466가. 교육조치··································································································467나. 징계수단(Zuchtmittel) ········································································467다. 형사처벌··································································································4682. 절차적 내용···································································································468제5절 통일 후 독일의 소년형법과 구동독 규정의 영향······························4691. 서 론··············································································································4692. 1990년의 제1차 소년법원법 개정법률·······················································470가. ‘가해자-피해자-조정’ ·············································································470나. 다이버전의 확대·····················································································4711) 검사의 기소유예················································································4712) 판사의 공소기각 ··············································································472다. 부정기형의 수정·····················································································472라. 사회적 훈련코스(Trainingkurs) ···························································4733. 동서독 청소년법원법과 현행 독일 청소년법원법의 비교 분석·················473가. 징계처분··································································································4741) 경고(Verwarnung) ···········································································4742) 부과명령(Auflage) ············································································4743) 소년구금(Jugendarrest) ···································································475나. 교육조치··································································································4751) 시설교육····························································································475다. 청소년형··································································································4794. 이후의 변화: 2006년 사법현대화법에 따른 개정······································479제6절 독일통일과 소년사법절차통합의 시사점·············································481제4장 동・서독 형사사법절차 통합의 시사점 ············································483
❘제6부❘종합적 고찰 및 결론 ·····································4891. 통일독일의 형법통합과 동서독형법 비교・고찰 ·········································4912. 동서독 형법총칙분야의 형법통합·································································4923. 동서독 형법각칙분야의 형법통합·································································4944. 통일독일의 실체형법 통합에 대한 종합 평가············································4955. 남북한 실체형법 통합에 관한 고찰·····························································4966. 형사사법기관・제도의 통합···········································································4987. 형사사법절차의 통합(특수절차의 사례) ·······················································5018. 결어: 통일과 형사사법통합의 길·································································502
참고문헌 ··········································································504
Abstract ·········································································528
부록 ················································································535
이 연구는 독일통일 25주년을 맞아 통일과정 및 통일 이후 형법 및 형사사법 통합에대하여 비판적 고찰을 통하여 시사점을 도출함으로써 우리나라 통일과정에서의 형법통합에 대한 관점을 넓혀보고자 하는 시도이다.이 보고서의 본론은 통일독일의 형법통합에 대하여 고찰(제2부)하고, 이에 비추어우리나라 통일시대의 남북한 형법통합 문제(제3부)를 형사실체법분야를 중심으로 다룬다. 이와 함께 형사절차의 영역에서는 독일의 형사사법기관 및 사법절차 통합사례를통해 본 남북한 형사사법기관통합의 문제(제4부)를 다루며, 형사사법절차 가운데서는특수절차로서의 경미사건처리절차 및 소년형사사법절차를 중심으로 통합의 문제(제5부)에 대해 고찰하고 있다.먼저 통일독일의 형법통합에 관한 고찰에서는 구동독의 형사실체법에 대한 연구를중심으로 독일통일을 이루기 위한 헌법적 가능성이 무엇이었는지에 대한 검토로부터형법통합의 가능한 방안들에 대하여 다루고, 나아가 구동독 형법전의 총칙과 각칙을독일연방공화국(서독) 형법전의 규정들과 대조시키는 방법으로 구동독 형법 내에 어떤 긍정적으로 고려될 수 있는 형법통합의 요소들이 존재하였는지를 분석한다. 비교고찰은 주로 형법총칙을 중심으로 이루어지며, 형법각칙은 비교가 의의를 지니는 것으로판단되는 주요구성요건에 국한하여 다룬다. 이를 기초로 독일의 형법통합이 우리의통일에 주는 시사점을 중심으로 남북한 형법통합의 쟁점들을 세분화하여 분석하고있다.이와 함께 형사절차의 영역에서는 형사사법제도 및 형사사법절차의 통합과 관련한문제를 다룬다. 형사실체법 통합 부분에서의 체계와 마찬가지로 독일에서의 통합과정에 대해 분석적으로 검토하면서 남북한 통일에 주는 시사점들을 도출하여 이를 분석하는 방식으로 진행된다. 특히 형사사법절차와 관련하여서는, 독일통일 이전에 독일형
법학계에서 관심을 가져온 동독제도라고 할 수 있는 “사회적 법원” 제도를 통한 경미사안의 처리 및 소년형법사안의 처리방식 등 특수절차에 국한하여 분석을 시도하며이를 통해 형사사법통합의 함의를 도출하고 있다.