판례평석 : 소년법의 적용과 전자장치 부착명령 = Juvenile Mitigation and Electronic Monitoring for the Juvenile Offender

다국어 초록 (Multilingual Abstract)

The korean juvenile law has adopted the discretionary mitigation of sentence on the basis of juvenile characteristics since 1988. And the court made it a rule that juvenile mitigation is available only to the offender who is juvenile at the time of adjudication. But juvenile offender may suffer unjust disadvantage in sentencing and appeal because of delayed processing. To avoid such an injustice any offender who was juvenile at the time of committing a crime should be benefited by juvenile mitigation. Futhermore the age criterion which divides juvenile and adult has been changed from 20 years to 19 years in 2007. When an offender committed a crime before amendment of the juvenile law and the trial was held after that, juvenile mitigation should be possible because he/she was juvenile according to the old law as favorable to the accused. The korean legislator has introduced electronic monitoring for the violent sex offender in 2007. But the offender who is under 19 years old shall be exempt from attaching electronic devices. The court ruled that it may order electronic monitoring for the juvenile offender because the law only excludes execution of electronic monitoring for the benefit of juveniles. However such an interpretation might produce so many problems including disparity or distortion in sentencing, appeal and parole. In fact identity disclosure and chemical castration for the violent sex offender could not be applied to the offender who is juvenile at the time of adjudication. So the court should not order electronic monitoring to the juvenile offender. In order to prevent recidivism after release of imprisonment the electronic monitoring could be imposed by the parole board if he/she is not juvenile at that time.