서양의 고대ㆍ중세의 형사절차에 있어 협상제도에 관한 연구 = A Study on a Negotiation System in a Western Criminal Procedure in Ancient and Middle Age

다국어 초록 (Multilingual Abstract)

This article concerns a negotiation system between an assailant and a victim during a criminal procedure in the western ancient and medieval ages. The negotiation system here mainly indicates a bargaining on the indemnity between the assailant and the victim. It has been existed for a long time in Western criminal proceedings. And today this system remains as a part of so called ‘Plea Bargaining’ in U.S. and U.K legal system.
The fact that there was bargaining system between the assailant and the victim in Western ancient and medieval ages’ criminal procedures shows that the first criminal procedure had placed more emphasis on compensating the damages to the victim rather than punishing the offender.
In our country, however, the settlement between the offender and the victim is recognized as an external part of the investigation and trial process because we adopt the system of public prosecution and only the prosecutor has sole right to prosecute in the criminal proceedings. Thus, the victim is not in a leading position in our criminal procedure.
The victim, however, has an interest in the proceedings and the consequences of the case as much as the offender. Especially in criminal case relating to the property, the victim has substantial interests to recover the damages he has suffered. In this regard, the status of the victim should be restored so that the victim can be able to play an active role in the criminal proceedings in particular, with respect to the compensation for the damages.
Considering the fact that it is a reality that the victim is not able to play the independent role in the current criminal proceeding, the basic perspective of the ancient and the medieval age’s bargaining system that the offender financially compensates to the victim in order not to be punished, is worth to reconsider.