'특정 범죄자에 대한 위치추적 전자장치 부착 등에 관한 법률’의 위헌성에 관한 재검토

Abstract

In April 2010, the “Electronic Surveillance Law” was revised again. This time is the third change since it has been issued, in April 2007. Among those revisions, this one has the most changes in its content. The changes are as follows. First, it made the period of surveillance longer up to 30 years and the requirements for the request of the Court's Order much broader. Second, including murder, it added other crimes for electronic surveillance. Third, it made the law retroactive in that it is effective to any criminal who is in the mid of the sentence and within 3 years after the termination of the sentence. This revision, however, in some respect, is very doubtful whether it is constitutional or not. This essay has made three points that can be a criteria for the judgement of the constitutionality of this law. Firstly, in Double Jeopardy, if we see the electronic surveillance as one of the punishment, the law is unconstitutional. Therefore, this essay tried to prove that the surveillance, at least, has some characteristic of a punishment. Secondly, this law might be against constitutional proportionality, because the period of surveillance is too long and the precondition of the Court's Order is too easy. Furthermore, basically the electronic surveillance can impair the privacy so that it is unconstitutional if the loss of private rights are lager than the probability of the prevention of the repetition of the crime. Thirdly and lastly, retroactivity is strictly prohibited in the Constitution. It is the case even if the electronic surveillance is not a punishment but a treatment for social security. Because it has some similarity with the punushment as it restricts 'the freedom of movement'. Moreover, the law can apply to a criminal who already got his(her) sentence before this revision. This is certainly unacceptable constitutionally, because, even the retroactivity of the social security treatment is effective only to the time of trial.