보호수용법안에 대한 비판적 검토- 독일 보호수용제도와의 비교를 중심으로 -

Abstract

As the issue of introducing a preventive detention system re-emerged, which followed after the revocation of the Social Protection Act, three different bills modeled after the German system are pending in the National Assembly at the time. The German system has been reformed to be more individual treatment-oriented, distancing from a penal nature, in answer to two major rulings; the European Court of Human Rights found it equivalent to imprisonment, and the Federal Constitutional Court of Germany ruled it unconstitutional. Under the revised rules, Germany's Criminal Code stipulates the basis for the enforcement of preventive detention, as it does for criminal penalties as well, including the requirements for imposition, determination of the period, and suspension. An order for a preventive detention tantamounts to a sentencing of a criminal sanction which involves a decision on deprivation of freedom, and an order regarding enforcement of the preventive detention includes a decision on an individual's freedom, as well as the methods and contents of the measure. Therefore, the entire process from its order to termination is subject to judicial control by a competent court. In addition, the current German system is evaluated as the result of implementing the Distance Requirement(“Abstandsgebot”) proposed by the Federal Constitutional Court, which includes specific guidances to distinguish between preventive detention and imprisonment. Although it does not provide sufficient grounds to justify the preventive detention, the Distance Requirement has implications in Korea as a minimum principle in order not to follow past trial and errors. The pending bills demonstrate efforts, learning from the circumstances that revoked the Social Protection Act, to avoid potential unconstitutionality by introducing a number of safeguards, including, for example, limiting the application to those convicted of significant-risk crimes. There are, however, several differences compared to the German system: the wordings regarding the principle of proportionality are different; the review process does not take into account whether any treatment to reduce the risk of recidivism has been provided; administrative bodies, rather than judiciary conduct reviews; no independent judicial controls are provided for; do not provide for any principle or rules that clearly distinguish preventive detention from penalty; and lack specific rules for the supervision of enforcement. If the preventive detention system were to be accepted as a security measure under the dualist system of criminal sanctions, it must be justified with minimal protections that clearly differentiates the detention from other similar forms of deprivation of freedom in terms of sentencing and execution, and requires the establishment of requirements and standards based on the principles of proportionality and ultima-ratio, as well as a judicial review system thereupon. In this regard, the current German system of preventive detention could be a model case to improve currently pending bills in Korea.