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영어

According to the decision of the Supreme Court, based on the majority opinion of the justices', juvenile protection measure cannot apply to ‘the more - than - 2 - times of repeated sexual violence criminals’ as Article 5 Clause 1 Paragraph 3 of Act on Electronic Monitoring Anklet Attachment and etc. for Particular Types of Criminals stipulates. This is because the Act is applicable only to ‘those convicted criminals’, not to those under juvenile protections cases, as it specifies on the Act. As the author knows, the 3 main reasons for the majority opinions of the justices are as follows. First, punishment regulations should be precisely interpreted, be strictly applied and should not be used unfavorably for the defendant. This ground is originated from the principle of legality. Second, Article 12. Clause 1. of the Constitution stipulated that ‘All citizens shall enjoy personal liberty. No person shall be arrested, detained, searched, seized or interrogated unless it is so authorized pursuant to statute. No person shall be punished, subject to preventive restrictions or to forced labor unless it is so authorized by an Act or without due process of law’. Therefore, based on this spirit of the constitution, since the order of electronic monitoring anklet attachment is preventive measures, this order should be also precisely interpreted and be strictly applied, in order to minimize basic human rights violation. Third, even though juvenile protection measure is implemented after the court's substantial hearing ․ judgement, since it is processed without prosecutor's intervention and only with the court's authority, it cannot be identified with the guilty conviction. Therefore, the only purpose of juvenile protection measure is not to have an unfavorable influence on juvenile delinquents. Considering the specific lines of the Act’, it can apply to those more - than - 2 - times of repeated sexual violence criminals’, the author can agree with the opinion of the majority of the justices. However, since the decision is agreed unanimously within the Supreme Court, prosecutors would not be able to ask for its attachment order, if the criminals would have been under juvenile protection restrictions. However, the purpose of the Act on Electronic Monitoring Anklet Attachment and etc. for particular types of criminals is to ‘monitor electronically’ on ‘particular types of criminals’ and to ‘prevent repeated offender’. The national consensus on this decision is already built and secured, as the author sees. Aside from prevention on particular types of repeated offenders’, ‘correction on sexual behavior’ or ‘re-socialization’ is specified in it as the purpose of the Act. However, the author think, these additional purposes can be attained not only by electronic monitoring anklet attachment, but also by additional probation. Clause 5 provides that in order to prevent ‘repeated criminals’, prosecutors can prosecute ‘the particular types of criminals’, specifically sexual criminals, for their offenses and ask for electronic monitoring anklet attachment order until closing argument of fact-finding proceedings and if the court decides that its attachment order is necessary after the hearing of the prosecuted case, the court can allow the prosecutor to ask for its attachment order. The author respects the Supreme Court’s decision in that it introduced new types of law for the purpose of prevention on repeated sexual criminals. However, the author also think that, if we consider the electronic monitoring anklet attachment order is one of prevention measures, the opinions of majority, asserting ‘the principle of legality’, is overly confined and perfunctory interpretation on the Act. It is because criminal law in Korea strictly separates punishment from prevention measures. This Act specifies forms and procedure of electronic monitoring anklet attachment in detail and the additional probation. In Article 5, specifically, it also provides that the process should be additional proceedings of criminal cases and in Paragraph 1 and Paragraph3, the criminal is confined to, specifically, ‘those habitually repeated offenders’. In legal practice, juvenile criminals are more likely to be classified as juvenile protection cases, even though they are violent criminals. However, according to this Act, even when they become adults, those repeated offenders cannot be imposed a penalty of electronic monitoring attachment. The author thinks practically this is not proper portion of weighing of the offence. Since it is already decided in the Supreme Court with unanimous agreement, practically, its legislation is the best solution to it, but the author sees, more discussion is necessary on what kind of criminals can be included in this electronic monitoring system. In addition, in the case of juvenile criminals, the court should consider to modify processing standard for juvenile criminals and standard for weighing of the offence. This is because, even if they are violent criminals, currently juvenile criminals are protected by juvenile protection system. The author thinks some more improvement are necessary for the Act and its practical implication.

한국어

2007. 4. 27. 제정되어 2008. 9. 1.부터 시행된 ‘특정 성폭력범죄자에 대한 위치추적 전자장치 부착에 관한 법률’은 제정 당시 법률적 관점에서 볼 때 많은 논쟁점들이 있었 음에도 불구하고, 당시 연이어 발생하는 극악한 아동 성폭력 사건들로 인하여 그 문제점 보다는 필요성에 대한 사회적 공감대를 형성하였고, 이를 바탕으로 모든 논란을 잠재우 다시피 하면서 매우 신속히 제정되었다. 위 법률은 시행 후 그 적용대상범죄를 확장하고 심지어 소급효까지 인정하는 획기적 내용을 담으면서 총 5차례에 걸쳐 개정된다. 가장 중요한 개정인 3차와 5차 개정을 좀더 살펴보면, 먼저 시행된 지 9개월만인 2009. 5. 8.(3차 개정) 대상범죄를 성폭력범죄만이 아니라 미성년 대상 유괴범죄까지 확대하면서 법률명도 ‘특정 범죄자에 대한 위치추적 전자장치 부착에 관한 법률’(이하 ‘전자장치부착법’이라 한다)로 변경되었다. 그리고 2010. 4. 15.(5차 개정) 다시 부칙 제2조를 신설하여 소급효를 인정하였다. 비록 대법원 이 전자장치부착명령의 법적 성격을 보안처분으로 이해하고 있으나 위 부칙 조항은 소 급효 문제 외에도 신뢰보호의 원칙, 비례성의 원칙 등 헌법위반의 여러 문제점에 대한 논쟁을 야기하고 있다. 이에 논고에서는 이 사건 조항의 해석과 직접 관련된 대상판결의 의의와 내용을 주로 검토하되, 전자장치 부착명령의 법적 성격과 소년보호처분의 법 현실에 비추어 볼 때 과 연 다수의견이 타당한가에 대한 문제점을 짚어보고, 이 사건 조항과 관련된 사법실무상 의 주요 문제점과 이와 관련된 입법적인 해결방향을 모색하고 있다.