소년원 임시퇴원제도에 대한 정책적·입법적 개선방안

김혜정 ( Kim¸ Hye-jeong ) 한국소년정책학회 2021 少年保護硏究 Vol.34 No.2

In the Juvenile Act, there is a protective disposition for resocialization from an educational point of view that helps juvenile offenders grow into healthy adults. The reason why we are preparing a juvenile criminal justice policy separately from the criminal justice policy for adults is that we believe that juvenile offenders have a higher potential for education and improvement than adult offenders. It is necessary to help juvenile grow into healthy adults rather than stigmatizing them as criminals and punishing them even if they commit crimes. The Juvenile Reformatory provides education such as subject education, vocational competency development training, and certification exam so that juvenile in protection can be nurtured so that they can return to society as healthy juveniles. Among juveniles detained in Juvenile Reformatory, if it is recognized that the purpose of correction has been achieved because of good correctional grades, they are subject to ‘Release on Parole’ or ‘Release’ pursuant to Article 44 of ‘Act on the Treatment of Protected Juveniles’. Protective juveniles imposed with disposition No. 9 will be ‘Release on Parole’ from the Juvenile Reformatory with about one month remaining. Upon release on parole, the juvenile will be charged with probation for six months. Because of the situation in which they will receive probation for a period that is about six times the remaining period, juvenile in probation often think that release on parole is rather unfavorable treatment. In principle, it is reasonable that the probation imposed along with Release on Parole should be for the remainder of the confinement period. For the judgment of Release on Parole, it is necessary to make a specific evaluation using various currently developed recidivism risk assessment tools. If necessary, it is also necessary to actively review the development of a tool to evaluate the recidivism risk of children in protection.

한국의 소년범 처리실태와 개선방안: 보호처분을 중심으로

한영선 한국청소년학회 2018 한국청소년학회 학술대회 Vol.2018 No.1

According to the recent news which youth crime is going severe, lots of people requested the petition of juvenile law abolition. Under this situation I look into the Korea`s juvenile crime trends, response of government, and some problems, suggest the several ideas First of all, the statistics reveal that Korea`s juvenile crime does not increase, especially recidivism rate decreases from 2013 year. However, rapes and sexual assaults are rising. The rate of youth offenders committed the crime whining 1 year among population of recidivists is 75.3%. It means that early intervention is important but the effort failed. Prosecutors are getting self-regulated in the discretion of prosecution of juvenile youth. They are reducing the number of prosecution and sending much more juvenile criminals to Juvenile Courts. But juvenile courts are making institutional disposition, which means Juvenile courts are showing "get tough policy". In 2007, Korea`s juvenile court act was amended a lot, especially the Congress changed the purpose of Juvenile court act in 50 years. The focus was shifted from "ensuring sound fostering of juveniles" to "helping sound fostering of juveniles". In order to help the juveniles` proper maturation in the practical situation, we need the proper personnel, facilities, and programs. I believe that privatization of education sect is the better way to reinforce the government personnel. Another suggestion is that related to the juvenile court act clause that "protective dispositions imposed on the juvenile shall not affect their future status". We all people should strictly follow the spirit of juvenile court act. Running away from juvenile facilities is not committing escaping the prison. In addition to that, we should consider a measure to sealing or demolishing the record of juvenile misbehaviors. 최근 들어 청소년범죄가 흉포화되고 있다는 언론보도와 함께 소년법의 폐지 청원 등 소년범에 대한 엄벌 요구가 증가하고 있다. 이러한 상황에서 우리나라의 소년범죄 실태와 처리 동향은 어떠한지 그리고 문제점이 있다면 어떤 개선방안이 있는지를 살펴보았다. 먼저 우리나라 소년사건의 실태를 살펴본 결과 일반적으로 우려하는 것처럼 증가하지 않는 것으로 나타났다. 소년범죄의 누범화 경향도 2013년을 기점으로 감소하고 있는 것으로 나타났다. 다만 인터넷의 영향으로 사기와 횡령 등 재산범죄와 성폭력 범죄가 늘어나는 것은 우려할만한 현상이다. 그리고 재범자 중에서 1년 이내 재범이 전체 재범자의 75.3%를 차지하고 있어 효과적인 보호관찰 등 조기 개입의 필요성이 매우 크다고 하겠다. 우리나라는 검사선의주의이지만 검사가 기소권을 스스로 통제하면서 소년법원으로 송치하는 비율이 점차 늘어나고 있으며, 소년법원은 시설내 처분을 하는 비율이 늘어나서 엄벌화 경향을 보이고 있다. 그리고 소년법의 목적이 소년의 건전한 육성이라는 국가 주도적 접근에서 소년의 건전한 성장을 돕는다는 소년 주도적 접근으로 변화하였으나 이를 집행현장에서 실천하기 위해서는 소년원 등의 인력확보가 무엇보다 중요하다. 다만 소년보호교육기관의 인력 부족은 직원의 충원 뿐만 아니라 민간 전문가에게 이를 개방하는 민영화도 한 방법이라고 생각된다. 다음으로 소년법의 보호처분은 소년의 장래에 어떠한 불이익도 미치지 않는다고 선언하고 있는바 소년원 등에서 소년이 이탈하더라도 도주죄에 해당되지 않는다고 하여야 할 것이며, 소년의 전과기록 특히 수사자료조회표에도 소년의 처분결과를 삭제 또는 봉인하는 방안을 마련하여야 할 것이다.

소년보호재판의 개선방안

차경환 사법발전재단 2009 사법 Vol.1 No.10

This article aims to search the problem of juvenile protection justice and to present the improvement plan of it. Juvenile protection justice was based on ‘Parent Partial’ historically. Juvenile is the early stage of human development, require particular care and assistance with regard to physical, mental and social development, and require special legal protection. The purpose of Juvenile Act is edification, improvement and protection of juvenile. Juvenile protection justice is administration of justice area such as the social overhead capital(SOC) that continuous interest and investment are required. For that reason, Juvenile protection justice had always been pushed out at priority order of judiciary improvement. Decrease of teenagers population and aging of population are becoming factor that threaten our society. And recently juvenile delinquency is showing tendency of increase in violence and recommitment rate. Juvenile act has based on the prosecutor initiative system in the procedural system of juvenile justice since the establishment of the juvenile act in 1958. But I have a strong opinion about the superior model in the procedural system of juvenile justice, that is the intake initiative should be given to the juvenile court. This article have several improvement plan about juvenile protection justice. Conclusively, part that the most important improvement plan is necessary extension of human base(especially, specialized Judge and investigator) connected with juvenile protection justice. In addition, I assert establishment of Juvenile court as soon as possible. Also the right of crime victims should be protected in juvenile protection justice area. 소년보호재판은 연혁적으로 국친사상에 기원하여 반사회성이 있는 소년의 환경 조정과 품행 교정을 목적으로 하는 재판작용을 말한다. 즉, 소년법에 규정되어 있는 다양한 보호처분 중에서 당해 보호소년에게 가장 유효ㆍ적절한 보호처분을 선택함으로써 국가적으로는 미래사회의 주역이 될 청소년들을 건전하게 육성하여 사회발전을 도모하고, 개인적으로는 올바른 가치관과 인성을 갖추게 하여 행복한 삶을 영위할 수 있도록 한다는 점에서 복지지향적인 사법작용이라 할 수 있다. 이러한 복지지향적인 사법작용은 그 효과가 즉시 나타나거나 쉽게 검증되기 어려울 뿐만 아니라 지속적인 사회적 관심과 재정적인 지원이 전제되므로 사법제도개선의 우선순위에서 밀려나기 쉬운 속성을 가진다. 소년보호재판은 기록에 나타난 과거의 전력이나 비행사실뿐만 아니라 보호소년의 성행과 환경을 주의 깊게 관찰함으로써 소년에게 가장 적합한 보호처분을 선택하는 것을 최종적인 지향점으로 하므로 이를 위해서는 보호소년에 대한 깊은 관심과 이해가 요구된다. 이러한 양질의 재판이 가능하기 위해서는 소년보호재판을 위한 인적, 물적, 제도적인 뒷받침이 절대적으로 필요하다. 본문에서는 소년보호재판의 관할, 소년부 판사와 소년조사관의 전문화, 심리기일의 내실화, 환경조사의 적극적 활용, 동행영장의 집행과 심리불개시결정의 문제점 및 개선방안 등과 같이 재판실무를 하면서 고민해 왔던 소년보호재판과 관련된 문제점과 개선방안을 다룬다. 아울러 보호소년 중심적인 소년법의 태도로 인해 소외되기 쉬운 피해자의 권익보호를 위한 개선책으로 일본 소년법과의 비교를 통한 절차참여권의 적극적 보장, 화해권고제도의 세부 규정의 마련 및 활성화 방안, 회복적 사법이념의 하나인 소년사법회합제도의 도입의 필요성을 주장하고자 한다. 근래에 소년사법제도에 관한 국민적 관심이 증가하면서 사법부 내부에서도 소년보호재판의 개선을 위한 다양한 노력들이 시도되고 있는데, 특히 청소년법정과 화해권고위원회의 시범운영, 국선보조인, 전문가 진단 및 상담ㆍ교육에 관한 재정적인 지원, 통고제도의 적극적 활용, 집행감독의 강화, 법관 및 소년조사관의 증원 노력 등이 그것이다. 위와 같은 사법부 내부의 개선노력이 국민적 호응을 얻게 되면 소년사법제도의 획기적 발전의 전환점이 될 법원선의주의의 도입과 소년법원의 설치가 가능하게 될 것이고, 이를 통하여 우리나라의 경제규모와 복지정책 수준에 상응하는 바람직한 소년사법제도를 마련할 수 있게 될 것이다..

소년보호제도의 최근 동향 및 발전방안 -법무부 소년보호기관을 중심으로-

오영희 ( Young Hee Oh ) 대한범죄학회 2010 한국범죄학 Vol.4 No.1

Juvenile crime is the main issue of social problem as serious as adult one. Our society conducts a great efforts for the juveniles`` guiding and delinquency protection. The 「Juvenile Law」and 「Juvenile Protection and Treatment Act」were revised on the 21st of December, 2007 and all the revised Act and Law went into effect on the 22nd of June 22, 2008. It is worth considering the management status of juvenile protection institutions doing reformative education of juvenile offenders and enforcing delinquency prevention education of juvenile delinquents, and meaningfully think the aspects of the establishment of juvenile justice system and the developmental policy direction via policy propelling status and performance analysis. This study introduces the role, the recent management performance and the major promoting task of juvenile protection institutions of Ministry of Justice related with the country``s juvenile protection system. And then it helped the understanding on the juvenile protection system by suggesting the prerequisite tasks of the juvenile protection institutions as leading institutions for the juvenile delinquents, and investigated the policy direction for realizing of the advanced juvenile justice system.

검사선의주의에 관한 검토

이승현 ( Lee Seung Hyun ) 한국소년정책학회 2007 少年保護硏究 Vol.- No.10

The goal of this paper is to present to the question, who should determine whether a juvenile offender should be subject to criminal measures or protective in the juvenile disposal procedures. The right to prior consideration is defined as the right to choose whether to put a juvenile offender through a protective procedure under the Juvenile Act or a criminal procedure under the Code of Criminal Procedure. The focus here does not lie in the conflict of attribution between court and prosecutor, but in the great importance of its deciding the future education and rehabilitation possibilities of the juvenile. According to Article 49 of the Juvenile Act, the prosecutors has the right to prior consideration in the juvenile disposal procedures. In other words, Korea upholds the principle of the prosecutor’s priority. Under the principle, prosecutors tend to emphasize the severity of crimes without fully investigating the personality or the environment of the juvenile and often choose punishment over reformation. Due to this tendency, the human rights of the juvenile can be easily violated during criminal investigation and examination procedure. Some authors say that the principle of the court’s priority conforms to the ideology of juvenile protection, while the principle of the prosecutor’s priority is inconsistent with the ideology of juvenile protection. They argue that the Juvenile Act should be revised to incorporate the principle of the court’s priority. The principle of the court’s priority, however, requires more of both human and financial resources, making it difficult to incorporate the principle at the current time. Futhermore, considering the fact that some counties adopting the principle of the court’s priority are attempting to extent the powers of the prosecutors: It doesn’t seem that introducing the principle of the court’s priority will solve all the problems. In this respect, I suggest that maintaining the principle of the prosecutor’s priority be maintaining, while Korea explores the solutions to overcome several practical problems in the current juvenile justice procedures. First, in the order to realize the ideology juvenile protection, it is required to clarify criteria of prior of prior consideration and solve the problems of juvenile detention. Also, it is necessary to make diverse facilities, including foster homes, juvenile welfare facilities and juvenile discipline facilities, available as well as juvenile discipline facilities, available as well as juvenile detention centers. Second, to ensure that due process is followed, the tact-finding procedure in the hearing should be clearly incorporated in the juvenile Act, the state-appointed assistants system should be introduced, due process should be applied to the juvenile protection, and the criminal compensation system should be consolidated. Third, the specialization of the juvenile prosecutors, the unification of investigation systems and the incentives tor community’s participation are also necessary. Fourth, the prosecutors should be prevented from abusing or misusing the right to prior consideration, through expanding the court’s post-control.

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.

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.

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.

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.

한국 개정소년법상 소년의 권리보장

이승현 ( Lee Seung Hyun ) 한국소년정책학회 2008 少年保護硏究 Vol.- No.11

Juveniles should be the target of protection rather than punishment even if they commit a crime, because they are an immature being and are easy to be influenced by environment. Nevertheless, due process tends to be obscured or human rights tend to be more limited in adjudication or disposition proceedings of juvenile cases than in adult criminal disposition, for it is recognized that juveniles are the objects of investigation and judgment in adjudication or disposition proceedings of juvenile cases, and the protective dispositions against juveniles are thought as special treatments for juveniles. Recently, Juvenile Act was revised in Korea and created provisions to strengthen human rights for juvenile. (i) Juvenile court judge should assign a court-appointed assistant to the entrusted juveniles under arrest. (ii) The prosecutor should make experts, including classification examiners and probation officers, join in the disposition proceedings of juvenile cases. (iii) The consignment period in the juvenile reformatory should not exceed two years. There are some challenges to be resolved in order to operate these new systems. (i) In the investigation system before prosecutors' judgement, the objectivity of hazard evaluation instruments should be maintained so that the investigation may be done objectively. (ii) In the disposition of juvenile protection cases, the criminal compensation should be introduced, the problem of the pre-trial detention should be resolved, and the transference program of a juvenile reformatory in the consignment period of one month should be developed. (iii) The training programs should be developed in order to enhance expertise of the juvenile prosecutor, juvenile judge and juvenile investigator. (iv) The Efforts should be made to comply with international agreements, including UNCRC(United Nations Convention on the Rights of the Child) and UNPJP(UN Guidelines for the Prevention Juvenile Delinquency).