다산(茶山) 정약용(丁若鏞)의 형사사법관(刑事司法觀)과 형사정책적(刑事政策的) 시사점(示唆點)

김진혁 ( Jin Hyeok Kim ) 경남대학교 인문과학연구소 2010 인문논총 Vol.25 No.-

Criminal justice system in the modern society has not fulfilled its original purpose, and it seems due to the fact that the system has failed to take a comprehensive approach to criminal cases. The judiciary is taking a leading role in controlling crimes as the authorities, but as crime is a social problem, it can be resolved without cooperation from a social community. In this regard, Yak yong Chung`s view on the judiciary carries significance with regard to the modern criminal justice system. Dasan Yak yong Chung`s view on the criminal Justice is based on affection toward human being. For this reason, his teaching goes beyond his time and becomes relevant even today. As Yak yong Chung said, it seems necessary to innovate criminal justice institutions first in order to realize people oriented criminal justice. Efforts need to be made to reduce types of crimes and realize de empowerment. In addition, criminal justice officials need to be equipped with a sense of justice and integrity. Each institution needs to make cooperation to achieve purposes as if they were one body, and they need to focus on helping criminals returning to the society instead of being preoccupied with punishing them. In the meantime, a social community that existed in the past needs to be restored from the socio environmental perspectives. If a social community is restored based on consistent human relationships and if its members are attached to one another as if they were one family, it will create the first round of social safety net. If so, criminal justice institutions would be able to cooperatewith the social community to deal with career criminals or culprits. What is the most important thing is to change perception in the society so that hostility against criminals can be overcome and they can be accepted to the society once again.

회복적 정의와 형사사법 정의

이용식(Lee, Yong-Sik) 동아대학교 법학연구소 2012 東亞法學 Vol.- No.54

피해자학의 발달과 회복적 정의이념의 도입은 단순한 피해자에 대한 형사법적 ‘관심’을 넘어서서 ‘피해자의 정의’를 우리의 형사사법체계에 도입해야 한다는 경향에 이르고 있다. 즉 회복적 정의이념으로부터 도출된 피해자의 정의를 통하여 형사사법에서의 ‘정의 패러다임’에 변화가 요구된다고 하는 주장이 대두되고 있는 것이다. 그러나 전통적인 형사사법 정의를 추구하는 형사절차에서 회복적 정의와 회복적 사법절차를 절충하려는 시도는 형사사법정의와 회복적 정의 모두에게 불만족한 결과를 가져올 수 있으므로 방법론적으로 이러한 시도는 일정한 한계에 봉착할 수 있다고 생각된다. 그렇다면 범죄피해의 회복과 피해자의 정의를 추구하는 회복적 정의와 회복적 사법의 주된 내용은 형법과 형법의 기능적 실현을 목적으로 하는 형사사법의 영역이 아니라고 선언을 하고 두 정의를 절차적 혹은 정책적으로 개별화할 필요가 있어 보인다. 회복적 정의와 형사사법 정의를 절충하려는 시도는 애초 형법과 형사사법절차가 회복적 정의의 이념과 목표를 수용하고 피해자의 피해회복과 보호라는 정책적 기능을 맡을 수 있을 것이라는 생각에 기인한다. 그러나 형법과 형사사법절차는 사회문제를 해결하는 만능의 수단이 결코 아니라는 점을 다시 한번 생각해볼 필요가 있다. 이는 형법의 최후수단성의 원칙으로부터도 간접적으로 도출된다. 형법은 사회질서유지에 필수불가결하고 형법 이외의 사회통제수단에 의해서는 효과적으로 보호될 수 없는 법익을 보호하기 위해서만 투입이 허용된다. 형법의 최후수단성 원칙은 이러한 소극적 측면뿐만 아니라 그러한 영역에 대하여 국가가 적극적인 사회정책을 제공하여 실질적인 자유를 가능하게 함으로써 개인의 자율성을 보장하는 역할을 담당하도록 하는 적극적인 측면도 가지고 있다. 즉 범죄피해의 회복과 피해자의 정의를 추구하는 회복적 정의의 영역은 형사사법의 본래의 기능과는 부합하지 않는 면이 상당하므로 형사사법절차를 통하여 회복적 정의를, 주된 목적이든 부가적 효과이든, 적극적으로 추구하는 것은 형법의 최후수단성 원칙의 취지와는 맞지 않는다고 할 것이며 형사사법절차와는 별개의 차원에서 정책적으로 다뤄지는 것이 형사사법의 취지와 회복적 정의의 취지를 동시에 보다 효과적으로 구현하는 방안이 아닌가 생각해 본다. The development of victimology and introduction of restorative justice raise not only a criminal interest to victim but also introduction of justice for victim in our criminal system. That is the assertion, that we have to change the ‘paradigm of justice’ in our criminal process with a justice for victim came from restorative justice. But the attempt to compromising traditional criminal justice and restorative justice on the traditional criminal process may make a dissatisfactory result to both sides. So such an attempt methodologically has a definite limit. Well then, I want to suggest that the contents of restorative justice concluded the restoration of criminal damage and justice for victim should not be in the area of criminal justice for the functional realization of criminal law. And I also want to separate two justice procedurally or on policy consideration. The attempt to compromising restorative justice and criminal justice came from the thinking that criminal law and criminal process can accept an ideology and a target of restorative justice and have a policy function for damage restoration and protection of victim. But criminal law and criminal process can not be a omnipotent method to solve social problems. The ‘ultima-ratio’ principle of criminal law points to this meaning.

형사 전자소송과 형사사법정보 : 쟁점과 과제

김한균 한국형사소송법학회 2022 형사소송 이론과 실무 Vol.14 No.4

This essay aims to review the criminal justice data from the point of digitalization of the criminal justice process and electronic criminal trial, which is to be put into practice by the year of 2024. The Act on Promotion of the Digitalization of the Criminal Justice System of 2010, amended in 2021 has been enacted to achieve promptness, fairness and transparency in a criminal justice procedure by promoting the digitalization of the criminal justice procedure and to contribute to the extension of citizens’ rights and interests by improving services to citizens in the area of criminal justice. In related to the 2020 Act, the new Act on the Use of Electronic Documents in the Criminal Justice System of 2021 was enacted to implement electronic criminal trial. The term “criminal justice information” means any information that is generated, acquired, or managed by a criminal justice agency through a criminal justice information system in relation to the conduct of criminal justice affairs, and that is expressed in the form of codes, letters, voice, sound, images by means of electronic processing, and the term “criminal justice information system” means an electronic management system built on combining hardware, software, databases, networks, security components, etc. for the use by a criminal justice agency to generate, acquire, store, transmit, or receive criminal justice information. When the criminal justice information are digitalized, they will be “Criminal Justice Data”, which will be the basis of digital criminal justice. For the digitalization of criminal justice process, criminal justice agencies have both duty to cooperate for stable operation of systems, and duty to cooperate in joint use of information. The keys to the successful implementation of digital criminal justice system and the development of the future electronic criminal trial are the organization of cooperative system for the Criminal Justice Information System, and the promotion of attentionability to human rights and security in the matters of criminal justice data. 본 논문은 형사사법 전자정보 관점에서 형사사법절차 전자화와 형사 전자소송을 이해하면서, 형사 전자소송의 시행대책에 있어서 형사사법 전자정보의 적정 관리에 관한 정책적 쟁점과, 형사전자소송의 발전전망에 있어서 형사사법 전자정보 활용의 실천적 과제에 대해 논의한다. 형사 전자소송과 형사사법절차 전자화는 형사사법 정보의 공유와 형사전자문서 활용의 기반 위에서 수사부터 소송과 집행에 이르는 형사사법개혁을 지향하는 바, 형사 전자소송의 도입운영과 형사사법정보의 적정 관리는 정보인권과 정보보안의 차원에서 이해되어야 할 것이다. 종래 형사사법절차가 전자화되고 전자소송 형태로 형사소송이 수행된다는 것은 이제 형사사법제도를 정보를 다루는 제도로서, 그 절차를 정보가 유통되는 절차로서 이해차원을 달리 해야 한다는 의미가 된다. 이로써 형사사법절차의 공정성과 효율성을 정보인권 차원에서 형사법제 정비 과제와, 형사정책적으로는 정보인권과 정보보안에 관한 제도실무의 전문역량 강화 과제를 논의할 필요가 있다. 형사 전자소송의 운영에 있어서 수사기관에 대한 정보집중의 문제성에 대한 기관간 시각차는 여전한 것으로 보이나, 전자정보 유출은 기술적 보안 및 인적 · 제도적 보안의 문제로서 공통의 문제이며, 형사사법정보 공통시스템의 관리주체 문제로만 보아서는 갈등의 소지를 해소하기 어렵다. 형사사법정보체계 협의체를 비롯한 협력체계를 통해 형사사법 전자정보의 적정한 관리문제로 다룰 때 발전적으로 해결해 나갈 수 있을 것이다. 그에 못지 않게 형사사법 전자정보의 인권침해가능성과 보안요구성에 정책적으로 민감하게 주의를 기울여 살필 수 있는 태도와 역량이 형사사법업무처리기관과 담당자에게 공히 중요하다.

회복적 사법으 형사조정에 관한 고찰

박광현 ( Kwang Hyun Park ) 제주대학교 법과정책연구원 2014 法과 政策 Vol.20 No.1

In the late 20th century, intensive policies of the punitive criminal justice system were lack of ability to deal with the crimes which were inundated qualitatively. Some scholars are criticizing the current criminal justice system for the absence of proper care for the criminal victims, which leads to the consideration of the introduction of the restorative justice as an alternative to the traditional criminal justice system. In recent years Korea Prosecution has attracted a great deal of attention for Criminal Mediation Program based on the restorative justice, which provides a new paradigm in criminal justice system. The Crime Victim Protection Law in Korea provides the contents of the criminal mediation in order to meet the demands of establishing ground laws to the criminal mediation system. it seems that the criminal mediation recently enacted is settling down for its usefulness and increasingly used in real work. The criminal mediation is a informal process whereby the victim and the offender of the crime meet with a trained and effective resolution with an emphasis on repairing the harm from the Crime. In the process of restorative justice, it is possible to restore the relationships among victims, offenders and community. In addition, it can minimize the side effect of traditional punishment, such as branding and desocialization of offenders. The criminal mediation will be a good solution which is superior to criminal justice. Restorative justice is a response to crime, suggested as a complement or alternative to the conventional criminal justice. Restorative justice can be at all stages of criminal procedure from before the accusation to correction. But restorative justice, on the basis of voluntary participation, cannot replace conventional criminal justice. And restorative justice functions well when criminal justice is operated fairly. The Subject of the current criminal mediation is limited to the minor crimes. Also because a victim closely related to the prosecutor`s office, there is a question of neutrality. Moreover, it often happens that a mediator does not get sufficient information of cases. In addition, the issue of restoration of relationship of parties is no dealt with so well because mediation has worked so excessively to achieve agreement of parties. However the restrictive role of the traditional justice is to be preserved. Also ‘the Criminalization of Civil Cases’ must be sublated. Restorative justice should be introduced in Korea as well to realize justice and develop confidence of the criminal jurisdiction from the civil society by reducing the work burden of the machinery of law and equally protect the rights of both victim and the offender

형사절차에서의 가해자-피해자-조정제도에 대한 비판적 고찰

윤영철(Yoon Young-Cheol) 한국형사법학회 2007 형사법연구 Vol.19 No.3

  Some scholars are criticizing the current criminal justice system for the absence of proper care for the criminal victims, which leads to the consideration of the introduction of the restorative justice, especially offender-victim-mediation(OVM), as an alternative to the traditional criminal justice system. Offender-victim- mediation is a process which allows crime victims to meet offenders face-to-face so as to discuss the effect of the crime and to conceive a restitution plan.<BR>  But despite the fact that there are many discussions on the necessity of the introduction of OVM, I argue that unreasonably less attention has been paid to its legitimation from the point of the principles of liberal democracy ruled by law. While the modern criminal policy tends to disregard the core concept of the traditional criminal justice, it seems to me to be excessive or absurd to ignore the idea of the traditional criminal justice or the principle of liberal democracy on which the traditional criminal justice is based. For unlike in other advanced countries, the social bases for the implementation of restorative justice in Korea are not yet prepared.<BR>  This article reviews the disadvantages of the informal OVM as one of the restorative justices by answering the questions as follows: whether the traditional criminal justice is indeed faced with a crisis; whether OVM can really be an alternative to the traditional criminal justice; whether informal OVM can be legitimated under principles of liberal democracy ruled by law.<BR>  This article shows that it is not the traditional criminal justice but the modern criminal justice or policy itself that is actually in crisis. Consequently OVM which has its theoretical base in the modern criminal justice can not be an alternative to the criminal justice.<BR>  This article does not argue that we should stick to the traditional justice system as a whole. Instead it argues that the restrictive role of the traditional justice is to be preserved. This article concludes that the decriminalization through legislation is the most preferable way to solve the problem of the expansion of criminal justice resulting from the restorative justice.

회복적 사법으로서의 형사조정제도 고찰

박현성,유영재 한국공안행정학회 2024 한국공안행정학회보 Vol.33 No.4

Traditional criminal justice, which focuses on restoring social order through punishment for criminals, has a limitation in not fully considering the victim's damage recovery and the perpetrator's perception of responsibility. On the other hand, restorative justice focuses on coordinating conflicts and bringing about damage recovery and social reconciliation by voluntarily and actively participating in the process of solving crimes by perpetrators, victims, and communities. The criminal mediation system generally refers to mediation between perpetrators and victims in criminal cases, and in Korea, it was introduced as part of a pilot program in 2006 and has reached this point. Until now, discussions have been made to point out problems in the function and role of the criminal mediation system and to improve them, but the limitations remain that it has not been able to function properly as a part of restorative justice. Therefore, this study analyzes the criminal mediation system from the perspective of restorative justice, reexamines the limitations, and suggests institutional measures to improve them. First, in order to examine how the purpose and purpose of restorative justice can be applied to our criminal mediation system, the concept and historical development background of restorative justice were explained, and various types of restorative justice systems operated overseas were examined. In the operational status of the criminal mediation system, the procedure for operating actual criminal mediation was examined in stages, and the problems arising in this process and their limitations were analyzed. As a result, it was confirmed that there are various problems, such as insufficient voluntary participation of perpetrators and victims in the mediation process, lack of neutrality and expertise of mediation committee members, and lack of legal enforcement power of mediation agreements. Several improvement measures were proposed to solve these problems and allow the criminal mediation system to function as a truly restorative judicial law. Specifically, supplementary measures were proposed, such as establishing an institutional procedure for the parties to the case to participate in mediation according to their voluntary will by clearly understanding the purpose of criminal mediation before participating in criminal mediation, and stipulating legal grounds so that substantial adjustments can be made based on the neutrality and expertise of the mediation committee members in the criminal mediation process. Through this study, we hope that our criminal mediation system can play a role as a criminal justice system that practically achieves reconciliation and social integration between perpetrators and victims by faithfully reflecting the ideology of restorative justice in the future.

형사사법개혁의 지향가치와 실천전략 - 최근 영국 형사사법제도 개혁백서를 중심으로 -

김한균(Kim HanKyun) 대검찰청 2013 형사법의 신동향 Vol.0 No.39

영국에서는 형사사법제도의 개혁과 형사정책의 틀과 방향을 제시하는 백서를 통해 개혁정책을 지속적으로 추진해 왔다. 즉 2001년 형사사법제도개혁백서(The Way Ahead), 형사제재 및 양형개혁백서(Making Punishment Works), 형사법원개혁백서(Review of the Criminal Court)에 이어, 2002년 형사사법개혁백서(Justice for All), 2004년 형사사법개혁백서(Cutting Crime, Delivering Justice), 2007년 형사사법개혁백서(Working Together to Cut Crime and Deliver Justice), 2013년 형사사법개혁백서(Swift and Sure Justice) 등을 통해 개혁입법안과 제도 개선책을 실행해 왔다. 특히 2012년도 형사사법제도 개혁백서(Swift and Sure Justice: The Government's Plan for Reform of the Criminal Justice System)은 형사사법 제도전반 개혁의 목표를 범죄방지와 피해자보호, 신속하고 효과적인 범죄문제 대응, 형사제재와 교정의 확실한 성과로 잡고, 신속성과 유연성, 정의의 확실한 실현, 투명성, 책임성을 형사사법제도개혁이 지향할 가치로 제시하였다. 우리나라에서 형사사법제도 개혁의 방향과 성과는 한국사회 전반의 인권신장과 공정성강화, 그리고 시민사회의 역량확대에 크게 영향을 받아왔다. 형사사법제도 개혁에서 가장 중요한 가치는 헌법과 국제인권규범이 보장하는 자유와 인권이다. 구체적으로는 형사사법제도와 정책의 공정성, 투명성, 책임성, 효과성이라 할 수 있다. 형사사법제도개혁은 개혁의 지향가치를 명확히 하고, 개혁을 요하는 현실문제의 진단에 근거하여 구체적 실천전략을 구성하는 체계적 실천이 되어야 한다. 그래야만 시대적 변화에 수동적이고 단편적으로 변화하는 데 그치지 아니하고, 공정하고 효과적인 형사사법제도로서 국민의 신뢰와 지지를 얻을 수 있게 될 것이다. This comparative study aims to analyse the series of criminal justice reform in England and Wales during the years between 2001 and 2012. The English criminal justice was once criticized for its complex, fragmented and delayed system. Thus, the reform strategies focused on swift, sure and transparent justice. In 2012, Ministry of Justice published its white paper, titled ‘Swift and Sure Justice’, which set out Government’s plan for the criminal justice reform. One of its proposals was to modernized the criminal justice, by creating flexible system. For the prevention of crime, justice should be delivered swiftly and decisively. A swift and sure justice should intervene early so that problems are not be escalated. Proper and effective punishments should be imposed on criminals. To tackle the problems of opaque and remote criminal justice system, the system should be opened up to public and make more information available. One of the lessons from the reform strategy of England is that highly centralized approach restrict the use of professional discretion, and the behavior of the professional to meet the imposed target rather than response effectively to crime and its causes. Korean criminal justice system has been reformed successfully under the principle of democracy and human rights, and by the values of fairness, effectiveness and accountability. For its further reform as one of the social reform agenda, the System should consider guiding values and systematic reform strategy.

회복적 사법의 실천으로서 형사조정

이보영(Lee, Bo-Young) 한양법학회 2015 漢陽法學 Vol.26 No.4

Unlike processing procedures of criminal cases in the legacy system of criminal justice, the restorative justice has a significance from the aspect that both crime victims and assailants play leading roles in solving a case. In Korea, discussions on the restorative justice has been developed in terms of criminal mediation in the review process concerning the protection of crime victims. The criminal mediation appeared on the foundation of the restorative justice, which has been considered as a new crime response strategy functioning for the 21stcentury. This paper started from the approach of the judicial system including the change of criminal policy focusing on victims, the reconsolidation of restitution of victims and the restorative justice. Based on such recognition, this paper examined the concept of restorative justice and its practice models, as an ideological foundation of the criminal mediation, as well as its limitation and restoration; reviewed what the meaning of criminal mediation scheme in the system of criminal justice; studied whether the current criminal mediation system is a restorative justice program; deduced a desirable practice model of criminal mediation; and verified whether it is possible to apply the model to practice. Finally, if the principle of restorative justice for restitution is realized in cases in which the distinction of an assailant and a victim is clear-cut, then we can expect the possibility and development of the criminal mediation system as a locus of the restorative justice.

형사사법상 피해자참여에 대한 소고

김재회 ( Zae Hee Kim ) 이화여자대학교 법학연구소 2014 법학논집 Vol.18 No.4

The recent trend of criminal policy tries to bring victims over to the paradigm of criminal justice. Our criminal justice and criminal policy trend also reflects such a move. The conventional criminal justice has the dualistic structure of the state, which has a right to inflict a punishment, and offenders who commit crimes. It requires a change in the concept of criminal justice. The change should be based on constant and sufficient research. Nevertheless, in the recent move of criminal policy, it is not rare to see the impetuous introduction of foreign systems to satisfy the public opinions and situational necessity. But, prior to such immediate and consequential introduction of foreign systems, it is necessary to pay attention to the course and results of much research that had been conducted before performance of the systems. Many of the current systems and materials to allow victims to engage in criminal proceedings were introduced from Japan. For the reason, this researcher tried to have a training program in Japan, and focused on the preparatory steps and review processes made to introduce the Japanese systems. In particular, this researcher not only investigated materials including literatures, but also visited relevant institutes for study. Directly hearing the voice of working-level officials was a good material in understanding how the system to support victims and protect their rights are operated. Based on that, this researcher examined the current system to protect victims` rights and the current system for victim participation into criminal proceedings, and proposed a plan to improve the systems. Few studies on the current theories and systems relating to the support for victims and protection of their rights have been conducted. Although many theses about victims have been published, there has been a lack of continuous support for theoretical grounds and consistent policy. In particular, what is necessary to bring victims over to criminal proceedings is not only to study the support for victims, but also examine the changes in the paradigm. Based on the studies, it is necessary to find the possibility of consistent association with the conventional criminal justice. For the operation of the policy, it is also required to conduct professional and continuous research. Therefore, this researcher suggests the establishment of a permanent research institute for that.

중국의 회복적 사법과 형사화해제도

민수현(Min, Shouxuan) 충북대학교 법학연구소 2017 법학연구 Vol.28 No.1

These days, the state punishes the perpetrator and sometimes strengthen criminal law to reinforce punishment on the perpetrator based on acts of the perpetrator. Such punitive measures are the restitutive justice we have known well. However, the perpetrator is not necessarily repentant for his/her wrong-doing under such punitive measures. Like this, there is a limit to restitutive justice. Because of the limitations of restitutive justice, we not only accept the punishment on the perpetrator but also have a doubt if it is righteous for only the state have a right of punishment poewer. In order to solve this doubt, we come up with a new paradigm, restorative justice, that is contrary to the exist. Restorative justice is aimed at not simply criticizing the perpetrator but restoring the relationship between the perpetrator and the victim. On the other hand, criminal mediation system, newly introduced as restorative justice in the revised Criminal Procedure Law of China in 2012, has a significant meaning since criminal mediation system emphasized communication between the perpetrator and the victim and tried to reconcile the perpetrator and the victim through letting the victim participate in the criminal case of the perpetrator. This paper describes the contents of criminal mediation system under the current Criminal Procedure Law, starting from how criminal mediation system as a part of restorative justice could be introduced in China, which has heavy penalty system. In addition, since criminal mediation system does not sufficiently reflect ideology of restorative justice in contrast to intention to implement original idea of restorative justice, the essential meaning of restorative justice has been distorted. To solve the problem, this paper has proposed some improvements.