우리 소년분류심사원 감호제도의 문제점 및 개선방안: 국제법상 아동의 자유 박탈에 관한 기본 원칙들을 중심으로 = Problems and Imperatives regarding Detention in Korea`s Juvenile Classification Review Boards: Considering the Basic Principles of Deprivation of Children`s Liberty under International Law

다국어 초록 (Multilingual Abstract)

International human rights law regarding juvenile justice emphasizes that deprivation of children`s liberty has a very negative effect on children`s harmonious development and requires that states parties take appropriate measures to strictly regulate deprivation of children`s liberty. International human rights standards, including the Convention on the Rights of the Child, provide the basic principles of deprivation of children`s liberty: prohibition of unlawful or arbitrary deprivation of children`s liberty, detention of children only as a measure of last resort and for the shortest appropriate period of time, and humane treatment of children deprived of their liberty. To effectively implement the basic principles, international human rights law of juvenile justice requires state parties to enact standards to decide pretrial detention of children in conflict with the law, to protect the right to appeal and the right to have a legal or other appropriate assistance to the children under pretrial detention, to set up time-lines for the right to appeal, and to establish a professional and impartial body to regularly monitor detention facilities and treatment of detained juveniles. Unfortunately, the Korean juvenile justice system fails to comply with the international human rights standards of juvenile justice. The basic principles which the international human rights law has confirmed has not been implemented by Korean laws and practices of detention in Juvenile Classification Review Boards. The standards to decide whether juveniles are detained in Juvenile Classification Review Boards are not legally provided. Korean legislation does not protect the right to appeal for the juveniles detained in Juvenile Classification Review Boards. The rate of detention in Juvenile Classification Review Boards is higher than the rate of pretrial detention regarding regular criminal cases and juvenile criminal cases. What is worse, considerable numbers of juvenile who had been detained in Juvenile Classification Review Boards answered that they had experienced serious human rights violations during their detention. However, the Korean juvenile justice system does not run a monitoring system for humane treatment of the detained juveniles and, therefore, it is not possible to understand the exact situation regarding inhuman treatment of the detained juveniles. Accordingly, this article asserts that Korean legislation should clearly provide the above-mentioned three basic principles of deprivation of children`s liberty: the principle to ban unlawful or arbitrary deprivation of children`s liberty, the principle to use deprivation of children`s liberty only as a measure of last resort and for the shortest appropriate period time, and the principle to protect humane treatment of the children deprived of their liberty. To practically implement these principles, this article requests the enactment of standards to decide detention in Juvenile Classification Review Boards, the protection of the right to appeal with regard to detention in Juvenile Classification Review Boards, the respect of the right to have a legal or appropriate assistance with regard to the right to appeal, the setting-up of time-lines for the right to appeal, and the establishment of a monitoring system to regularly examine Juvenile Classification Review Boards and juveniles detained in Juvenile Classification Review Boards.