형사소송법에서 권리의 구체적인 의미 - 변호인의 피의자신문참여권과 압수물 반환청구권을 중심으로- (The concrete meaning of right in korean criminal procedure)

서지정보

· 발행기관 : 한국경찰법학회
· 수록지 정보 : 경찰법연구 / 8권 / 2호 / 147 ~ 168페이지
· 저자명 : 이상문

초록

The purpose of this study is to analyse the right in korean criminal procedure.
Especially I focus on the right to get attorney's assistance and the right to request of seized article.
Hohfeld charaterized the fundamental legal conception with the categories of four right, for examples, claim-right, liberty-rights, power and immunities.
A claim right is a right which entails that another person has a duty to the right-holder. Somebody else must do something for the claim holder such as perform a service or supply a product for him or her, that is, he or she has a claim to that service or product or future act. In logic, this idea can be expressed as: “Person A has a claim that person B do something if and only if B has a duty to A to do that something." Every claim-right entails that some other duty-bearer must do some duty for the claim to be satisfied. This duty can be to act or to refrain from acting. For example, in many jurisdictions people have broad claim rights to things like “life, liberty, and property"; these rights impose an obligation upon others not to assault or restrain a person, or use their property, without the claim-holder's permission. Likewise, in jurisdictions where social welfare services are provided,citizens have legal claim rights to be provided with those services.
A liberty right or privilege, in contrast, is simply a freedom or permission for the right-holder to do something, and there are no obligations on other parties to do or not do anything. This can be expressed in logic as: “A has a privilege to do something if and only if A has no duty not to do that something." For example, if a person has a legal liberty right to free speech, that merely means that it is not legally forbidden for them to speak freely: it does not mean that anyone has to help enable their speech, or to listen to their speech; or even, per se, refrain from stopping them from speaking, though other rights, such as the claim right to be free from assault, severely limit what others can do to stop them.
I think that rights must be analysed and identified as complex assemblages of Hohfeldian rights-category. In conclusion I think that the right to get attorney's assistance was a liberty right(now a claim right) and the right to request of seized article is a claim right.

영어초록

The purpose of this study is to analyse the right in korean criminal procedure.
Especially I focus on the right to get attorney's assistance and the right to request of seized article.
Hohfeld charaterized the fundamental legal conception with the categories of four right, for examples, claim-right, liberty-rights, power and immunities.
A claim right is a right which entails that another person has a duty to the right-holder. Somebody else must do something for the claim holder such as perform a service or supply a product for him or her, that is, he or she has a claim to that service or product or future act. In logic, this idea can be expressed as: “Person A has a claim that person B do something if and only if B has a duty to A to do that something." Every claim-right entails that some other duty-bearer must do some duty for the claim to be satisfied. This duty can be to act or to refrain from acting. For example, in many jurisdictions people have broad claim rights to things like “life, liberty, and property"; these rights impose an obligation upon others not to assault or restrain a person, or use their property, without the claim-holder's permission. Likewise, in jurisdictions where social welfare services are provided,citizens have legal claim rights to be provided with those services.
A liberty right or privilege, in contrast, is simply a freedom or permission for the right-holder to do something, and there are no obligations on other parties to do or not do anything. This can be expressed in logic as: “A has a privilege to do something if and only if A has no duty not to do that something." For example, if a person has a legal liberty right to free speech, that merely means that it is not legally forbidden for them to speak freely: it does not mean that anyone has to help enable their speech, or to listen to their speech; or even, per se, refrain from stopping them from speaking, though other rights, such as the claim right to be free from assault, severely limit what others can do to stop them.
I think that rights must be analysed and identified as complex assemblages of Hohfeldian rights-category. In conclusion I think that the right to get attorney's assistance was a liberty right(now a claim right) and the right to request of seized article is a claim right.

참고자료

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