형사피해자의 재판절차진술권에 대한 헌법적 고찰

다국어 초록 (Multilingual Abstract)

The Constitution of Korea(amended in 1987) guarantees crime victims the right to be heard in the criminal justice process as follows: A victim of a crime shall be entitled to make a statement during the proceedings of
the trial of the case involved as under the conditions prescribed by Act.(Article 27 [5]) The protection of the right, which is based on the recognition of crime victims' specific interest in the process, transforms crime victims into participants in the criminal justice process. The right to be heard at trial is a kind of procedural right that guarantees victims opportunity to participate in the process, but it does not guarantee the prosecution of offenders in a case or in a type of cases. The Legislature is vested with the responsibility
for the materialization of the right. It is given a broad range of discretion in selecting measures to embody such procedural right so long as they provide meaningful protection. On the other hand, the victims' right to be
heard has to coexist with the constitutional rights of defendants, such as the right to a fair trial. In order to comply with the constitutional mandate, the amended Criminal Procedure Act(CPA) grants victims right to make a statement through the procedures for hearing witnesses unless the court determines that the testimony would cause considerable delay of the procedure. Courts assume great responsibility for the enforcement of victims' right to be heard and for harmonizing it with the rights of defendants because CPA provisions heavily relies on the courts' wise administration of the process in these matters. CPA does not ignore constitutional command, but it has following problems, among others: (1) It lacks specific enforcement mechanisms to vindicate the victims' right (2) Victims are not only allowed to state the effect of the crime on them, but also allowed to give their opinions on sentencing and characterizations of the crimes in all kinds of cases. Because there is no
sentencing guidelines concerning the victims' opinion, the acceptance of such evidence creates a risk that the court may impose penalty in an arbitrary manner.

참고문헌 (Reference)

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