폐지되었지만 폐지되지 않은 보호감호

• 영문명: Abolished, but the Preventive Detention which isn't abolished -A Critical Study on the Constitutional Court 24. 9. 2015. 2014heonba222-
• 발행기관: 한국형사정책학회
• 저자명: 박상민(Park Sang Min)
• 간행물 정보: 『형사정책』刑事政策 第27卷 第3號, 135~159쪽, 전체 25쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2015.12.30

영문 초록

In 1980, in South Korea, Preventive Detention has been introduced with enactment of Social Protection Act. But it was discontinued in 2005 for the reason of a double punishment and human rights violation discussion. Social Protection Act is abolished, however it was placed transitional provisions to be follow the previous Social Protection Act which is involved in a enforcement based on the Preventive Detention final judgment before the abolition of the law. Hereby, although the legal basis of the Preventive Detention has been abolished, it has still been enforcing. However the Constitutional Court ruled that the legal provisions was not only in 2009 constitutional judgment but in 2015. For the decision of these Constitutional Court, such as the following questions has been raised. First, Can the Punishment and the Preventive Detention be actually so easily distinguished under the nature of two sactions, purpose and function? Second, Can the problem of the Preventive Detention be solved by improving of the Preventive Detention enforcement? Third, Can enforcement of the Preventive Detention without legal basis be justified from viewpoint of the Proportional Principle? The Preventive Detention have a distinctiveness that is located between the Punishment and the 'normal' Measure of Security, thereby are constantly embroiled in unconstitutional controversy such as double punishment. The punishment element of the Preventive Detention reduces and will be able to the prominent position as a Measure of Security which contribute to Special Prevention through the improvement of differentiated enforcement from punishment. The Preventive Detention that have been enforced as the punishment - without legal basis - is violated the proportional principle for reasons of a serious infringement on Individual Freedom.

목차

Ⅰ. 들어가는 말

Ⅱ. 헌법재판소의 판단과 그에 대한 비판적 분석

Ⅲ. 보호감호 집행의 개선방향

Ⅳ. 맺는 말

참고문헌

키워드

보호감호 보안처분 형벌 비례성원칙 사회보호법 재사회화 Preventive Detention Measure of Security Punishment Proportional Principle Social Protection Act Resocialization