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통일시대의 형사정책과 형사사법통합연구 (I) : 동서독 형사사법통합 25주년의 평가와 통일시대의 형사사법통합 과제
- 작성일2016.01.20
- 조회수1,364
좌우로 스크롤 하시면 표의 전체 내용을 보실 수 있습니다.
| 연구책임자 | 박학모 | 소속기관 | 한국형사·법무정책연구원 |
|---|---|---|---|
| 내부연구참여자 | 박학모 외 6인 | 외부참여연구자 | |
| 발행기관 | 한국형사·법무정책연구원 | 공개여부 | 공개 |
| 출판일 | 2015년 12월 | 등록일 | 2016.01.20 |
| 페이지 | 0 | 분류기호 | 15-B-20 / 15-CB-02 |
| 언어 | 한국어 | 판매여부 | 판매 |
| 판매가격 | 15,000원 | 보고서유형 | |
| ISBN | 표준분류 | ||
| 연구유형 | 자료유형 |
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
❘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
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