수형자에 관한 헌법재판소 결정의 분석과 평가

Abstract

In case a prisoner is given the most severe disciplinary measure of prohibitory confinement for violating the rules, it is hardly unreasonable to narrow or deprive a freedom formerly enjoyed by the prisoner to a limited extent. Even if the restriction of the basic rights of the inmates is inevitable for the maintenance of safety and order within the prison facilities, the essence thereof may not be violated and the principle of prohibition against excessiveness should be observed. Specifically, the restriction of the basic right by way of rules and sanctions for the maintenance of order and safety within the prison facility is an affliction additionally imposed on the inmates aside from imprisonment. As such, it may be permitted only when the purpose cannot be achieved in any of the alternative methods. The purpose of administration and treatment of correctional institution inmates act is to promote correction and edification of convicted persons and their sound rehabilitation into society and to prescribe necessary matters concerning treatment and rights of prisoners and operation of correctional institutions. The term “convicted prisoners” means persons sentenced to imprisonment with labor, imprisonment without labor, or penal detention, the respective sentence of which has been irrevocably finalized and persons ordered to be detained in a workhouse for default of the full payment of a fine or minor fine; The term “unconvicted prisoners” means criminal suspects or criminal defendants arrested or subject to execution of a warrant of confinement ; The term “prisoners” means convicted prisoners, unconvicted prisoners, prisoners on death row with fixed penalty and other persons confined in a prison, detention house and branches thereof (hereinafter referred to as “correctional institutions”) pursuant to an Act and a legal procedure. This Act shall apply to premises of correctional institutions and other places in which correctional officers keep safe guard of prisoners and the control of whom is required. and Human rights of prisoners shall be respected to the utmost in the enforcement of this Act. Prisoners shall, without reasonable grounds, not be discriminated on the grounds of sex, religion, disability, age, social status, region of origin, state of origin, nation of origin, physical conditions including features, medical history, whether married or not, political opinion, sexual orientation, etc. It is very difficult to reach both a goal of ensuring prisoners’ human rights and a goal of maintaining security and order. The trade-off is between the two goals. Therefore, it is not allowed to pursue only one goal. It is ecessary to harmonize human rights and discipline, for these two goal are equally important factors. Human rights of prisoners shall be respected to the utmost.