Currently, Korea has been disgraced as 'the Republic of the Accusation' because of a serious level of abuse complaints. To prevent this abuses, many countermeasures had been presented, but they had not been actually effective. Because of this, investigators has clarified to carry out severe punishme...
Currently, Korea has been disgraced as 'the Republic of the Accusation' because of a serious level of abuse complaints. To prevent this abuses, many countermeasures had been presented, but they had not been actually effective. Because of this, investigators has clarified to carry out severe punishment to the False Accusation and has strengthened the crackdown. However, for the regulation which did not consider the characteristics of the False Accusation, they can not prevent the abuse complaints. The purpose of this study is to consider the False Accusation to prevent abuse complaints since it has been enacted in First Criminal law.
In Chapter 2, the current situation of our society for abuse complaints were analyzed and in Chapter 3, the general study on the definition of the current regulation for the False Accusation was examined. In Chapter 4, additional study on the definition for False Accusation was sought by examining legislation cases of Germany, Japan, and France. Based on chapters above, in Chapter 5, additional study on the definition and amendment for the False Accusation were proposed to prevent abuse complaints. Finally, in Chapter 6, it reaches the conclusion by comprehensive discussion
This study showed that regulation and interpretation for False Accusation have three major problems.
First, it is about the interpretation of common view and precedent in a range of 'disciplinary punishment', requisite for the establishment of False Accusation. The common view and precedent are interpreting range of 'disciplinary punishment' as a associated special authority relation. However, the special authority relation theory that damages the principle of constitutional state was already dead theory in the academic world of administrative law. And False Accusation is originally created to protect the personal legal interest of the accused person. Therefore it is desirable that the interpretation contain a whole range of 'disciplinary punishment' that violates the accused's legal stability.
Second, prosecution rate of False Accusation is significantly lower than that of other crimes because of its own characteristic that has difficulty to prove intent of the False Accusation. In other words, it is not clear whether it was willful negligence or not because it is fact that a false accuser with intention for civil resolution is damaged by the accused, if he is not a criminal victim. Thus, with reference to the French legislation case, there is a need to supplement the law that if the report is not recognized, the report of criminal fact is presumed false. However, Presumption Provision can not be accepted because it may cause side effect of intent. But False Accusation is occurred to criminal of fraud, embezzlement, malpractice more often, so if those report is rejected, criminal justice organization must change their direction and actively investigate false accusation for improvement of prosecution rate.
Third, The statutory punishment of false accusation is a maximum of 10 years in prison or 15 million won in fines, and the sentencing commission prescribe imprisonment of six month to 2 years for general false accusation. This imprisonment did not consider equity between a false accuser and a target of false accuser. Because in case of violent crimes ,or murder, sexual attack and etc, the statutory punishment of the false accuser is applied less than that of target of false accuser. In this point, the sentencing commission’s guide lines are not considering that the false accusation violate the legal stability and national judgement functionality. The slight statutory punishment offset the effect of criminal control and eventually leads the preventive function of criminal law to be weakened. For the equity between the offence and punishment, we should introduce BANJWA so that the false accuser is punished by the law as he reported.
Currently, Korea has been disgraced as 'the Republic of the Accusation' because of a serious level of abuse complaints. To prevent this abuses, many countermeasures had been presented, but they had not been actually effective. Because of this, investigators has clarified to carry out severe punishment to the False Accusation and has strengthened the crackdown. However, for the regulation which did not consider the characteristics of the False Accusation, they can not prevent the abuse complaints. The purpose of this study is to consider the False Accusation to prevent abuse complaints since it has been enacted in First Criminal law.
In Chapter 2, the current situation of our society for abuse complaints were analyzed and in Chapter 3, the general study on the definition of the current regulation for the False Accusation was examined. In Chapter 4, additional study on the definition for False Accusation was sought by examining legislation cases of Germany, Japan, and France. Based on chapters above, in Chapter 5, additional study on the definition and amendment for the False Accusation were proposed to prevent abuse complaints. Finally, in Chapter 6, it reaches the conclusion by comprehensive discussion
This study showed that regulation and interpretation for False Accusation have three major problems.
First, it is about the interpretation of common view and precedent in a range of 'disciplinary punishment', requisite for the establishment of False Accusation. The common view and precedent are interpreting range of 'disciplinary punishment' as a associated special authority relation. However, the special authority relation theory that damages the principle of constitutional state was already dead theory in the academic world of administrative law. And False Accusation is originally created to protect the personal legal interest of the accused person. Therefore it is desirable that the interpretation contain a whole range of 'disciplinary punishment' that violates the accused's legal stability.
Second, prosecution rate of False Accusation is significantly lower than that of other crimes because of its own characteristic that has difficulty to prove intent of the False Accusation. In other words, it is not clear whether it was willful negligence or not because it is fact that a false accuser with intention for civil resolution is damaged by the accused, if he is not a criminal victim. Thus, with reference to the French legislation case, there is a need to supplement the law that if the report is not recognized, the report of criminal fact is presumed false. However, Presumption Provision can not be accepted because it may cause side effect of intent. But False Accusation is occurred to criminal of fraud, embezzlement, malpractice more often, so if those report is rejected, criminal justice organization must change their direction and actively investigate false accusation for improvement of prosecution rate.
Third, The statutory punishment of false accusation is a maximum of 10 years in prison or 15 million won in fines, and the sentencing commission prescribe imprisonment of six month to 2 years for general false accusation. This imprisonment did not consider equity between a false accuser and a target of false accuser. Because in case of violent crimes ,or murder, sexual attack and etc, the statutory punishment of the false accuser is applied less than that of target of false accuser. In this point, the sentencing commission’s guide lines are not considering that the false accusation violate the legal stability and national judgement functionality. The slight statutory punishment offset the effect of criminal control and eventually leads the preventive function of criminal law to be weakened. For the equity between the offence and punishment, we should introduce BANJWA so that the false accuser is punished by the law as he reported.
주제어
#무고죄 추정규정 반좌율
※ AI-Helper는 부적절한 답변을 할 수 있습니다.