형사절차에서의 가해자-피해자-조정제도에 대한 비판적 고찰

• 영문명: A Critical Study on the Offender-Victim-Mediation in Criminal Process
• 발행기관: 한국형사법학회
• 저자명: 윤영철(Yoon Young-Cheol)
• 간행물 정보: 『형사법연구』형사법연구 제19권 제3호 (下), 849~876쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.01.21

영문 초록

  Some scholars are criticizing the current criminal justice system for the absence of proper care for the criminal victims, which leads to the consideration of the introduction of the restorative justice, especially offender-victim-mediation(OVM), as an alternative to the traditional criminal justice system. Offender-victim- mediation is a process which allows crime victims to meet offenders face-to-face so as to discuss the effect of the crime and to conceive a restitution plan.
  But despite the fact that there are many discussions on the necessity of the introduction of OVM, I argue that unreasonably less attention has been paid to its legitimation from the point of the principles of liberal democracy ruled by law. While the modern criminal policy tends to disregard the core concept of the traditional criminal justice, it seems to me to be excessive or absurd to ignore the idea of the traditional criminal justice or the principle of liberal democracy on which the traditional criminal justice is based. For unlike in other advanced countries, the social bases for the implementation of restorative justice in Korea are not yet prepared.
  This article reviews the disadvantages of the informal OVM as one of the restorative justices by answering the questions as follows: whether the traditional criminal justice is indeed faced with a crisis; whether OVM can really be an alternative to the traditional criminal justice; whether informal OVM can be legitimated under principles of liberal democracy ruled by law.
  This article shows that it is not the traditional criminal justice but the modern criminal justice or policy itself that is actually in crisis. Consequently OVM which has its theoretical base in the modern criminal justice can not be an alternative to the criminal justice.
  This article does not argue that we should stick to the traditional justice system as a whole. Instead it argues that the restrictive role of the traditional justice is to be preserved. This article concludes that the decriminalization through legislation is the most preferable way to solve the problem of the expansion of criminal justice resulting from the restorative justice.

목차

Ⅰ. 들어가는 말
Ⅱ. 현대적 형(사사)법의 위기
Ⅲ. 회복적 제재로서의 가해자-피해자-조정제도
Ⅳ. 가해자-피해자-조정제도의 문제점
Ⅴ. 나가는 말(현대적 형사사법에 대한 대안 - ‘법률상의 비범죄화’)
〈Abstract〉

키워드

회복적 제재로서의 가해자-피해자-조정제도 회복적 사법 현대적 형사사법 또는 형사정책의 위기 전통적 형사사법 법률상의 비범죄화 Offendervictim-mediation as a restorative sanction Restorative justice Crisis of modern criminal justice or policy Traditional criminal justice Decriminalization through legislation