조건부 기소유예처분의 법적 의의 및 활용방안

Abstract

As society becomes more complex and technology advances, it has become difficult to discern what is a crime and how far is the freedom that is allowed. In other words, crimes today are diversifying from traditional crimes to new crimes. These diversified crimes need to differentiate the legal response according to each stage by dividing the degree of illegality and responsibility into stages. Penalties (statutory sentences) are already differentiated according to the size of illegality and liability. And this differentiation needs to diversify legal treatment methods beyond punishment. This is especially true in that minor crimes need to be decriminalized as much as possible to prevent the mass production of convicts and to achieve smooth social integration. In minor crimes, one of the means to achieve these criminal policy objectives can be conditional probation. However, despite this necessity, there is no clear legal basis for conditional prosecution in Korea. Although it is stipulated in some individual laws, the legal basis is inadequate in light of the reality that it is actively operated. In addition, the “convenience of prosecution”, the principle of prosecuting prosecution in Korea, is a problem of misuse of prosecution deferred disposition because the limits of prosecution discretion are unclear. From this, it is possible to think of ways to overcome the limitations of prosecution by categorizing the “condition” of conditional prosecution. In this paper, we have looked at ways to categorize conditional prosecution as a ‘burdened’ or ‘command observance’ conditional prosecution. At this time, by stipulating these ‘burdens’ and ‘instructions’ more clearly in the law, first, not only increases the confidence in the prosecutor's right to prosecute, but also, secondly, secures legitimacy for those subject to probation whose basic rights are violated through ‘conditional’. In addition, thirdly, the effect of indirectly enhancing the normative power of the prisoners can be expected. Therefore, it is desirable for conditional probation that will increase in the future to stipulate the general contents of conditional probation in the Criminal Procedure Act, and to more clearly present ‘conditional’ for preventing recidivism and prompt return to society in accordance with the nature of the crime applied in individual laws. It seems to be an improvement direction.