판례평석 : 소년법의 적용과 전자장치 부착명령

최병각 ( Byung Gak Choi ) 한국비교형사법학회 2011 비교형사법연구 Vol.13 No.1

The korean juvenile law has adopted the discretionary mitigation of sentence on the basis of juvenile characteristics since 1988. And the court made it a rule that juvenile mitigation is available only to the offender who is juvenile at the time of adjudication. But juvenile offender may suffer unjust disadvantage in sentencing and appeal because of delayed processing. To avoid such an injustice any offender who was juvenile at the time of committing a crime should be benefited by juvenile mitigation. Futhermore the age criterion which divides juvenile and adult has been changed from 20 years to 19 years in 2007. When an offender committed a crime before amendment of the juvenile law and the trial was held after that, juvenile mitigation should be possible because he/she was juvenile according to the old law as favorable to the accused. The korean legislator has introduced electronic monitoring for the violent sex offender in 2007. But the offender who is under 19 years old shall be exempt from attaching electronic devices. The court ruled that it may order electronic monitoring for the juvenile offender because the law only excludes execution of electronic monitoring for the benefit of juveniles. However such an interpretation might produce so many problems including disparity or distortion in sentencing, appeal and parole. In fact identity disclosure and chemical castration for the violent sex offender could not be applied to the offender who is juvenile at the time of adjudication. So the court should not order electronic monitoring to the juvenile offender. In order to prevent recidivism after release of imprisonment the electronic monitoring could be imposed by the parole board if he/she is not juvenile at that time.

소년범죄사건과 정보공개에 관한 비교법적 소고

김연지 한국소년정책학회 2018 少年保護硏究 Vol.31 No.2

In recent cases where the content of the crime is serious, and attracts a lot of attention, the information about the suspect is usually disclosed by the media. This happens because the law stipulates that in cases of certain violent crimes and sexual assault crimes, exceptions can be made to remove the protection from the suspect’s personal information. In addition, Article 68 of the Juvenile Act prohibits the reporting of juvenile offenses and juveniles who are under investigation or in trial, so that if the suspect is a juvenile, their personal information and photos may not be disclosed under any circumstances. Juveniles are still mentally or morally immature, as a result, even if they commit a crime, they are less liable than adults under the concept of protectionism in juvenile law. Furthermore, there is a reasonable aspect to prevent juveniles from reporting crime, even if they commit criminal acts, in order to help them grow healthily for the purpose of juvenile law. However, the crimes by some juveniles can be so inhuman and serious, that this protection of juveniles is questioned. As a result of comparative legal investigation, the U.S., Japan, and Brazil allow the cases of juvenile offenders as well as their information to be officially disclosed in exceptional cases of juvenile crimes. In other words, if the protection of public interest is greater than the protection of the juveniles, even if the aggressor is a juvenile, then the public’s right to know should be guaranteed and the juvenile’s name or photo should be revealed. This way, it is possible to prevent a recidivism from the violent crime. Subsequently, the law needs to be revised for the sake of ensuring social awareness of the violent crime. The public has the right to know personal information of juvenile offenders in extremely exceptional cases in which a serious damage, such as death, has been caused. Of course, even in exceptional cases, judicious judgment based on strict criteria is necessary, despite the fact whether it is possible to disclose personal information or not. .

소년원 처분목적에 대한 설명이 소년원 생활에 미치는 영향 - 처분목적 인식의 매개효과 -

조병철,오지향,전영실,고기원,박선웅 한국소년정책학회 2024 少年保護硏究 Vol.37 No.1

This study exploratively examines the impact of the purpose explanation of juvenile protective disposition provided to juveniles at the stages of juvenile trial and admission to juvenile training school on their life in juvenile training school and how this relationship is mediated by different perceptions of the purpose of disposition (environmental adjustment, healthy growth, conduct correction, physical restraint, and punishment). To do so, we used survey data collected from the Korea Institute of Criminal Justice's ‘Study on Improving Treatment in Juvenile Training School To Promote Human Rights Protection of Juveniles’. The data comprised survey data from 632 juveniles housed in 8 national juvenile training school, of which 525 were analyzed. The results of the parallel multiple mediation analysis showed that the mediating effects of environmental adjustment, conduct correction, and punishment purposes were significant in the relationship between the explanation of the purpose of juvenile protective disposition and the positive effects of life in juvenile training school, with the mediating effect of conduct correction being the largest. However, the mediating effects of healthy growth and physical restraint purpose were not significant. Notably, these result patterns were consistently observed regardless of whether factors known to significantly influence adaptation to facility life, such as relationships with teachers and peers, were included as covariates. This study identifies factors that contribute to the positive impact of life in juvenile training school and emphasizes the need for explanations for juvenile protective disposition and the importance of recognizing the purpose of the disposition. Based on these findings, the implications, limitations, and directions for future research were discussed.

소년사법절차에 관한 연구 -소년경찰의 다이버전을 중심으로-

이영란 한국소년정책학회 2010 少年保護硏究 Vol.15 No.-

This study focuses on the police diversion of juvenile offenders, such as release with a warning and guidance and protection measures that can be considered to be an earlier stage of the juvenile justice system. In practice, the police are the authority which faces the juvenile offender for the first time in the course of the juvenile justice against him/her, and is capable of making swift and precise factual judgments. As such, it is deemed more desirable for the police to attempt to divert juveniles whom it determines to have shown minor delinquent behaviors, than to commence formal criminal proceedings against juvenile offenders. The police diversion is the most efficient measure to help families,schools and local communities prevent juvenile delinquency with the least amount of resources available. The legal basis of such police diversion can be provided by adding specific and clear provisions to the current relevant laws and regulations on juvenile. Family conference can realize the concept of restoration in juvenile criminal law and vitalize the juvenile justice system with the advantage of using close family ties, which is the fundamental nature of Korean culture. Family has been heavily emphasized in the studies for juvenile delinquency because it is agreed that family takes a fundamentally important role in the adolescence of a juvenile and it is also regarded as the most important reason for development of juvenile delinquency. Furthermore, in order to promote specialization of the prosecution of juvenile crimes, an exclusive juvenile court needs to be established, because the juvenile justice procedure,unlike the general criminal procedure, essentially requires cultivation of specialists and experts in the field. Currently, Korea does not have such exclusive juvenile court and all juvenile cases are being handled by the Juvenile Departments of Seoul Family Court and other regional courts. Considering the distinct characteristics of juvenile crimes and the efficiency of the juvenile justice system in dealing with juvenile crimes, it would be desirable to establish a juvenile court that exclusively handles all juvenile cases.

독일의 소년범죄 대응 현황 및 그 시사점

고명수 한국소년정책학회 2024 少年保護硏究 Vol.37 No.1

We have been contemplating the appropriate response to juvenile crime for a long time. Despite various attempts, we are still struggling to adequately address juvenile crimes and fostering the healthy growth of juveniles remains challenging. To achieve this, it is important to enhance the effectiveness of education when protective measures against juvenile delinquency. The Ministry of Justice has announced plans to strengthen education in detention centers and to establish juvenile delinquency prevention centers in the private sector, focusing on educational principles to properly educate morally and mentally immature juveniles. To successfully implement this plan, this paper analyzes Germany's juvenile justice system and draw insights from it. In Germany, when disciplining juvenile offenders, care is taken to ensure that the principles of subsidiarity and proportionality are observed. Informal measures, such as diversion and offender-victim mediation, are prioritized, followed by community-based measures, and then measures in facilities. Among the community-based measures, supportive disciplines are prioritized over repressive sanctions. By structuring sanctions in this way, the most appropriate and least burdensome measures are imposed on the juvenile offender. In Germany, the “Jugendamt” is comprehensively responsible for child and juvenile welfare from a socio-educational perspective. It forms a tripartite relationship with parents and private welfare organizations to support appropriate childcare and actively assists children and juveniles at risk. Employees of the “Jugendamt” function as juvenile justice officers under the Juvenile Court Act. They do not merely investigate and supervise juvenile offenders but also support and guide juveniles throughout the entire judicial process, providing educational assistance. Establishing a comprehensive child and juvenile welfare organization like the “Jugendamt” would help promote their welfare consistently and systematically while also maintaining and enhancing the professionalism of the relevant tasks.

소년법의 연령과 형사책임

김혁(Kim Hyeok) 한국형사정책학회 2016 刑事政策 Vol.28 No.3

The concept of juvenile protection in the current Juvenile Act applies not only to juvenile protection cases but also to juvenile criminal cases, and the juvenile justice system has been developed in accordance with the problems of criminal responsibility age. In other words, it means that the juvenile protection ideology, which forms the basis of the Juvenile Act, has a nature that can not be discussed separately from the criminal responsibility. This is evidenced by the fact that measures for juvenile protection are criminal sanctions that restrict the basic rights of juveniles. Therefore, it is natural to think about the age problem of the Juvenile Act in connection with the problem of criminal responsibility, and through such a process, it becomes possible to understand rationally the various age regulations prescribed in Juvenile Act. In the protection cases, if the protective detention is introduced to improve rehabilitation of the age group with incomplete responsibility, it is logical whether a juvenile is the object of protective detention or not should be based on the age at the time of act as in the Criminal Act. In the criminal cases, for the same reason, the age standard of the indeterminate sentence and reduction of punishment should be judged by the time of act. The attempt to harmonize the juvenile and criminal laws in terms of criminal responsibility is not merely a slogan of the Juvenile Act aiming at healthy growth of the juveniles, but rather a way to refrain from excessive state intervention and guarantee the juveniles’ procedural rights.

소년사법절차에서의 소년피해자보호

최영승 한국소년정책학회 2016 少年保護硏究 Vol.29 No.4

Juvenile justice procedure have the nature of sanctionsis and purpose of sound growth of juveniles. Nevertheless it has been operated mainly by injury juveniles. But It's not just a injury juvenile and victim juvenile in juvenile case. They are forming a front-to-back relationship between injury juvenile and victim juvenile in Juvenile Act. Here is why the protection of victims is important in juveniles' cases. The Juvenile Act introduces victims' procedural rights and reconciliation recommendations. But This system is carried out only in the process of the protection case and it is known that it is not actively performed in practice. Therefore, it can be seen that there is not enough protection or consideration for the boy victim in the juvenile case. This article examines the possibility of step - by - step protection and support for juvenile victims throughout the juvenile justice process. However, I will postpone the research on the concrete measures etc and here I am at the level of raising the issue. Of course, legislation is suggested when necessary. In addition, the protection of victim juveniles needs to be linked primarily with organizations such as the Crime Victim Support Center under the Crime Victims Protection Act. Ultimately, however, it is necessary to consider how to introduce a specific victim organization for juveniles in the juvenile justice system. In addition, The victim should be provided with information about the injury juvenile by step by step of the juvenile justice process and reflected the opinion of the injured juvenile in the disposition of the injury juvenile in the Juvenile Act. If the juvenile is a special, it should be noted that the current juvenile law and the general law will limit the protection of the victim juvenile.

소년연령의 기준에 관한 논의 - 형사정책적 방안을 중심으로 -

박호현 사단법인 한국안전문화학회 2023 안전문화연구 Vol.- No.21

Juveniles are not physically and mentally mature compared to adults. Therefore, the Juvenile Act was enacted to protect, educate and re-socialize these juveniles. In other words, the juvenile law is based on the parent patriot. Therefore, juveniles are being dealt with juvenile crimes or juvenile delinquency through juvenile protective disposition rather than criminal punishment. However, recent juvenile crimes are indistinguishable from adult crimes. In other words, it has as much cruelty and ferocity as adult crime. Whenever these juvenile violent crimes occur, there has been an argument for a reduction in juvenile age. But juveniles are faster at reflection than adults. And it is possible to re-socialize through education. Therefore, age reduction is not the only alternative. Therefore, it is necessary to examine the relationship between the reduction of juvenile age and juvenile crime. Therefore, this paper will investigate the juvenile age of each country. Then, we will examine whether there is a common part about the juvenile age of each country. If there is no common juvenile age in each country, criminal policy measures will be devised. To this end, it is necessary to ensure the effectiveness of juvenile protective disposition. In addition, an individual educational environment for juveniles living in juvenile Detention Center should be created. Admissions to juvenile detention centers are not simply to give penal effect to juveniles. If you return to society through juvenile detention center, you have to find a job that suits you. In other words, juvenile detention centers should provide education suitable for the talents and aptitudes of juveniles. In addition, the problem of overcrowding in juvenile detention centers must also be solved. The living room should be a place where confidentiality can be guaranteed for juveniles in sensitive times. Therefore, overcrowding of juvenile detention centers should be prevented in advance.

소년범죄자의 사회복귀지원에 관한 검토-일본 소년원법과 소년감별소법을 중심으로-

배상균 한국소년정책학회 2018 少年保護硏究 Vol.31 No.1

In recent years, juvenile offenses have been decreasing in Korea and Japan, but the recidivism rate is high enough to reach about 40%. The government of Japan is systematically advancing the preventing recidivism against juvenile offenders as the main policy task. In connection with this, in June 2014 the new Juvenile Training Schools Act (Act No. 58 of 2014) and the Juvenile Classification Homes Act (Act No. 59 of 2014) were enacted, and through this, we are promoting smooth social rehabilitation support to a juvenile. The preventing recidivism matters have been conducted under these new laws: For example, (i) to conduct assessment of juveniles based on professional knowledge and skills, (ii) to conduct observation and protection of juvenile committed to the homes for their sound development, and (iii) to provide support within the local community to prevent juvenile delinquency and crime. In this way, Japan has strengthened its treatment to support the smooth rehabilitation of juveniles through the establishment of the new Juvenile Training Schools Act and the Juvenile Classification Homes Act. Also, recent trends in juvenile policy in Japan are not only treatments that respect juvenile's intent and personality, but also, for the purpose of supporting smooth rehabilitation, securing housing for juveniles and finding employment. This is based on the result of investigating how securing of housing and finding employment affect the decline of the recidivism rate in juveniles. .

소년강력범죄의 사전 대응에 관한 소고

김두상 한양법학회 2019 漢陽法學 Vol.30 No.1

While various debates are being discussed on the juvenile violent crimes, the fact that more than 3,000 cases of juvenile delinquency per year could be the decisive indication of the problem of current juvenile justice. However, we haven't activated the study on appropriate measures yet. On the other hand, there are several systems that give us meaningful solutions such as diversion in America, educational disposition in Germany, and juvenile independency supporting institutions in Japan which have reasonal disciplines and authentic care for juvenile. Although care for juvenile should be the most basic ideal of the Juvenile Act and juvenile justice, there are some problems that we can't judge juveniles who abuse codes of the Juvenile Act only by the conventional concept of protection. They couldn't be seen before. In other words, today, advanced mass media and changes of the home·school education not always affect juvenile affirmatively. So, if the intention of care for juvenile merely don't want to punish juvenile, it couldn't be real care for juvenile. And revision of the codes of juvenile delinquency is needed as pre measures for juvenile violent crime. Also it is necessary that we prevent juvenile from being a unpunishable delinquent or juvenile delinquent by managing them in practice through revising obscure provisions on juvenile delinquency. Also we need to enhance the programs of the 'Center of raising the dreams of Youth' so the programs work properly in practice. Practical programs related to schools should be implemented because the current education system is so formal that it is less helpful to juvenile. Because juvenile delinquency is often committed by youth who are emotionally damaged in unfortunate environments such as broken families, we need measures that can basically protect juvenile and prevent crime through psychotherapy for youth based on medical disposition in probation No. 7.