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주요 형사특별법의 법체계의 정비와 통합 방안에 관한 연구 : 경제범죄 관련 형사특별법의 처벌규정들의 형법에의 편입가능성을 중심으로

주요 형사특별법의 법체계의 정비와 통합 방안에 관한 연구 : 경제범죄 관련 형사특별법의 처벌규정들의 형법에의 편입가능성을 중심으로 (3회 대출)

자료유형
단행본
개인저자
김유근
서명 / 저자사항
주요 형사특별법의 법체계의 정비와 통합 방안에 관한 연구 : 경제범죄 관련 형사특별법의 처벌규정들의 형법에의 편입가능성을 중심으로 = Study on the reform of special acts : possibility to the integration of the criminal provisions in special criminal acts relating to the economic crimes into th criminal code / 김유근
발행사항
서울 :   한국형사정책연구원,   2017  
형태사항
viii, 272 p. ; 26 cm
총서사항
연구총서 ;17-AA-12
ISBN
9791187160588
서지주기
참고문헌: p. [259]-270
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001 000045939304
005 20180626112207
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008 180412s2017 ulk b 000c kor
020 ▼a 9791187160588 ▼g 93360
035 ▼a (KERIS)BIB000014804335
040 ▼a 243009 ▼c 243009 ▼d 211009
041 0 ▼a kor ▼b eng
082 0 4 ▼a 345.519 ▼2 23
085 ▼a 345.53 ▼2 DDCK
090 ▼a 345.53 ▼b 2017z11
100 1 ▼a 김유근 ▼0 AUTH(211009)95989
245 1 0 ▼a 주요 형사특별법의 법체계의 정비와 통합 방안에 관한 연구 : ▼b 경제범죄 관련 형사특별법의 처벌규정들의 형법에의 편입가능성을 중심으로 = ▼x Study on the reform of special acts : possibility to the integration of the criminal provisions in special criminal acts relating to the economic crimes into th criminal code / ▼d 김유근
260 ▼a 서울 : ▼b 한국형사정책연구원, ▼c 2017
300 ▼a viii, 272 p. ; ▼c 26 cm
490 1 0 ▼a 연구총서 ; ▼v 17-AA-12
504 ▼a 참고문헌: p. [259]-270
830 0 ▼a 연구총서 (한국형사정책연구원) ; ▼v 17-AA-12
900 1 0 ▼a Kim, Yoo-keun, ▼e
945 ▼a KLPA

소장정보

No. 소장처 청구기호 등록번호 도서상태 반납예정일 예약 서비스
No. 1 소장처 중앙도서관/법학도서실(법학도서관 지하1층)/ 청구기호 345.53 2017z11 등록번호 111789606 도서상태 대출가능 반납예정일 예약 서비스 B M

컨텐츠정보

저자소개

김유근(지은이)

한국형사정책연구원 부연구위원. 법학박사.

정보제공 : Aladin

목차

국문요약 ················································································1 
서 론 ·····················································································3 
제1절 경제범죄의 개념 ·················································································5 
1. 범죄학적인 관점 ·····························································································5 
2. 법학적인 관점 ·································································································6 
제2절 연구의 범위 ························································································9 

제1장 경제범죄 관련 형사특별법의 문제점과 정비를 
위한 기준 ··························································11 
제1절 경제범죄 관련 형사특별법의 문제점 ················································13 
제2절 경제범죄 관련 형사특별법의 정비를 위한 기준 ·······························15 
1. 고려사항 ········································································································15 
2. 형사특별법의 정비를 위한 기준 ·································································18 
가. 체계정합성과 유사중복규정의 정비 ····························································18 
나. 법정형의 균형 ································································································26 
다. 불필요한 경합관계의 제거 ············································································26 
라. 독립구성요건의 기본법으로의 편입과 행정법종속적인 가중처벌규정들의 
정비 ·················································································································32 

제2장 일괄적인 정비가 가능한 영역 ···························33 
제1절 범죄수익 또는 피해의 가액에 따른 법정형의 구분의 문제점 ··········35 
1. 가액에 따른 법정형의 구분의 적절성 ························································37 

ii 주요 형사특별법의 법체계의 정비와 통합 방안에 관한 연구 
2. 입법방식 ········································································································41 
가. 주요 외국의 입법례에서 취하고 있는 규정방식 ·········································42 
1) 오스트리아 ···································································································43 
2) 중국 ··············································································································44 
3) 캐나다 ··········································································································48 
4) 미국 ··············································································································49 
5) 영국 ··············································································································51 
6) 독일 ··············································································································51 
나. 검토 ·················································································································52 
3. 부록: 이득액에 따른 법정형의 구분 ···························································53 
제2절 형사특별법에 정한 몰수 추징의 법적 성격과 정비방안 ···················62 
1. 법적 성격: 이익박탈적 몰수 추징과 징벌적 몰수 추징 ···························62 
2. 문제점 ············································································································65 
3. 정비방안 ········································································································71 
제3절 부정한 금품 등 수수 및 제공 ··························································72 
1. 각 법률에 산재한 부정한 금품 등의 수수 및 제공에 대한 처벌규정 ·····72 
2. 법정형의 불균형 ···························································································73 
가. 금품등수수와 제공의 법정형의 균형 ····························································73 
나. 다른 법률에서의 법정형의 균형 ···································································76 
다. 가액에 따라 법정형을 구분하고 있는 경우에서의 금품등수수 
죄와 제공죄의 법정형의 불균형 ···································································77 
3. 주요 외국의 입법례 ······················································································79 
4. 정비방안 ········································································································84 
5. 부록 : 부정한 금품 등 수수 및 제공에서의 수수와 제공의 관계 ···········87 

제3장 특정경제범죄 가중처벌 등에 관한 법률 ········99 
제1절 특정재산범죄(제3조) ·······································································101 
제2절 금융회사 등의 임직원과 관련한 죄 ···············································106 
1. 금융회사 등의 임직원의 범죄구성요건의 규정체계 ································106 
2. 적용범위 ······································································································109 
3. 금융회사 등의 임직원의 수증재(제5조 및 제6조) ··································111 
4. 사금융알선 등의 죄(제8조) ·······································································116 
5. 저축관련 부당행위의 죄(제9조) ································································120 
6. 무인가 단기금융업의 가중처벌 (제11조) ·················································121 
7. 금융회사 등의 임직원의 보고의무(제12조) ·············································122 
8. 정비방안 ······································································································123 

제4장 특정범죄 가중처벌 등에 관한 법률 ············125 
제1절 뇌물죄의 가중처벌(제2조) ······························································127 
제2절 알선수재죄(제3조) ··········································································129 
1. 법체계상의 문제 ·························································································131 
가. 「변호사법」 제111조와의 경합문제 ····························································131 
1) 「변호사법」 제111조 제1항과 특가법상 알선수재의 유사성 ·················132 
2) 적용범위의 차이 ························································································134 
3) 소결 ············································································································135 
4) 제삼자알선증재죄의 신설 ·········································································136 
나. 형법전의 뇌물죄 체계와의 관계 ·································································136 
1) 알선수증재죄의 법전편제상의 위치 ·························································136 
2) 형법상 알선수뢰와의 관계 ·······································································138 
2. 알선증재죄의 신설의 필요성 ·····································································142 
3. 개정방안 ······································································································143 
4. 정비방안 ······································································································144 
제3절 재산국외도피죄(제4조) ····································································145 
1. 「국내재산 도피방지법」과의 관계 ······························································145 
2. 다른 범죄구성요건과의 경합관계에서 발생하는 문제점 ·························148 
가. 이중 처벌의 문제  법령을 위반한 선행행위와 특경법상 
재산국외도피죄 간에 상상적?실체적 경합이 항상 성립하는 문제 ·········148 
나. 다른 범죄구성요건과의 관계 ······································································149 

iv 주요 형사특별법의 법체계의 정비와 통합 방안에 관한 연구 
3. 법정형의 불균형 ·························································································152 
4. 정비방안 ······································································································156 
가. 특경법상 재산국외도피죄를 「외국환거래법「범죄수익은닉 
규제법「조세범 처벌법」 등으로 옮기는 방안 ········································156 
나. 형법전으로의 편입 ·······················································································157 
제4절 국고 등 손실(제5조) ······································································159 
제5절 관련 개별 법률에의 편입이 가능한 규정들 ···································161 
1. 「관세법」 위반행위의 가중처벌(제6조)과 관계 공무원의 무기사용(제7조) ···161 
가. 「관세법」 위반행위의 가중처벌(제6조) ·······················································161 
나. 관계 공무원의 무기사용(제7조) ··································································165 
다. 정비방안 ·······································································································166 
2. 조세포탈의 가중처벌(제8조) ······································································166 
가. 「조세범 처벌법」 제3조 제1항 ····································································166 
나. 「조세범 처벌법」 제4조 및 제5조 ······························································168 
다. 「지방세기본법」 제102조 제1항 ·································································168 
라. 정비방안 ·······································································································169 
3. 세금계산서 교부의무 위반 등의 가중처벌(제8조의2) ·····························169 
제6절 외국인을 위한 탈법행위(제12조) ···················································169 

제5장 재정범죄 관련 형사특별법  공적 부조를 위한 
각종 보조금 및 급여의 부정수급 ····················179 
1. 복잡한 경합관계 ·························································································181 
2. 복지급여 등의 부정수급과 형법상 사기죄 ···············································186 
3. 정비방안 ······································································································190 
가. 형법상 사기죄나 횡령죄로의 일원화 ··························································190 
나. 문제점 ···········································································································191 
다. 「보조금 관리에 관한 법률」에 정한 부정수급 처벌규정의 유지 ··············192 
라. 정비방안 ·······································································································195 
4. 부록: 보조금 사기 및 횡령 ·······································································196 

제6장 보험범죄 관련 형사특별법 「보험사기방지 특별법」 ···199 
1. 보험사기죄와 형법상 사기죄와의 관계 ····················································201 
2. 문제점 ·········································································································203 
3. 정비방안 ······································································································209 
제7장 금융범죄 관련 형사특별법 ······························213 
제1절 「국내재산 도피 방지법」 ·································································215 
제2절 「부정수표단속법」 ···········································································217 
1. 각 조문의 문제점 ·······················································································218 
가. 부정수표발행인의 형사책임(제2조) ····························································219 
1) 부정수표 발행?작성죄(제2조 제1항) ·······················································219 
2) 부도수표 발행?작성죄(제2항) ···································································221 
3) 과실범의 처벌문제 ····················································································227 
나. 위조변조자의 형사책임(제5조) ··································································230 
다. 법인단체 등의 형사책임(제3조) ································································233 
라. 거짓 신고자의 형사책임(제4조) ··································································233 
마. 「형사소송법」의 특례(제6조) ·······································································234 
바. 금융기관의 고발의무와 불고지죄(제7조) ···················································235 
2. 정비방안 ······································································································235 
제3절 「전기통신금융사기 피해 방지 및 피해금 환급에 관한 특별법」 ····237 
1. 전기통신금융사기 목적 정보 등 입력죄 ··················································238 
가. 전기통신금융사기 목적 정보 등 입력죄의 구성요건의 문제점 ················239 
나. 다른 범죄구성요건들과의 규율의 중복성 ··················································246 
1) 보호법익 및 행위유형의 중첩적인 규율 ·················································246 
2) 경합관계의 복잡성과 적용의 혼란 ··························································250 
다. 소결 ···············································································································252 
2. 제16조(벌칙) ·······························································································252 
3. 양벌규정의 문제 ·························································································254 
4. 정비방안 ······································································································255 

vi 주요 형사특별법의 법체계의 정비와 통합 방안에 관한 연구 
결 론 ················································································257 
참고문헌 ···········································································259 
Abstract ··········································································271

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