형사소송절차상 관행으로서 형사합의에 관한 실증적 연구

• 영문명: An Empirical Study on 'Criminal Settlements' as an Informal Criminal Justice Practice
• 발행기관: 한국형사정책학회
• 저자명: 장다혜(Chang, Da-Hye)
• 간행물 정보: 『형사정책』刑事政策 第24卷 第3號, 131~160쪽, 전체 29쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2012.12.31

영문 초록

Though not officially institutionalized as a part of the criminal procedure, 'criminal settlements' currently practiced in Korea have actual legal significance. This study investigates how this unofficial practice of 'criminal settlement' is being practiced in the criminal justice system. For this purpose, qualitative analyses were performed on empirical data collected from various sources including interviews with legal practitioners and other literatures of non-academic nature. The findings of this study are summarized below. Criminal settlements have certain legal effects within the criminal procedure because: 1) they represent a dispute resolution method based on reconciliation agreement between the assailant and the victim aimed at restoration for the victim, and 2) such unofficial dispute resolution is considered during official criminal procedure by means of the 'subsidiarity principle' under Korean criminal law. During a criminal litigation, criminal settlements are considered through two concepts under the criminal law: victim's unwillingness to punish the defendant, and the defendant's efforts for restoration. The unofficial legal practice employs a systemized procedure for confirming and considering such concepts. Criminal settlement, considered as a dispute resolution method through restoration, comes to constitute a legal custom within modern criminal procedure in the following way. As the civil procedure is separated from the criminal procedure, the judicial bodies do not officially intervene in the processes and details of settlements between private entities, only focusing on the victim's unwillingness to punish as a ground for its adjudication. This results in the processes and details of the settlements being left in the private sphere. In addition, as the system of criminal law is based on adversary system which focuses on punishing the assailant, criminal settlements are considered only as an evidence of the defendant's efforts for restoration. This reflects only the defendant's point of view, while no institutional remedy is available for confirming and evaluating the actual effort for restoration in the victim's point of view. Under these circumstances, criminal settlements are re-interpreted as a part of the defendant's right to defend, not as a way to restitute for the injuries suffered by the victim.

목차

Ⅰ. 들어가는 말

Ⅱ. 비공식적 관행인 형사합의의 개념과 법적 성격

Ⅲ. 형사소송실무상 형사합의의 절차와 방식

Ⅳ. 형사합의 법실무의 특징과 문제점

Ⅴ. 나오는 말

참고문헌

Abstract

키워드

형사합의 비공식적인 형사소송절차 형사실무관행 피해회복 criminal settlement informal criminal justice system criminal justice practice restoration