성폭력범죄자의 성충동 약물치료에 관한 법률에 대한 비판적 검토

Abstract

As a measure to prevent recurrence of sex crime, “Act on Medication Treatment of Sexual Impulse of Sex Offenders” (hereinafter “Sexual Impulse Medication Treatment Act”) was enacted on July 23, 2010, and will be effective from July 24, 2011. The legal authority announced that the purpose of the Sexual Impulse Medication Treatment Act is to differentiate the treatments of the sex offenders` characteristics, not intended to be consistent in applying severe punishment. In this paper,the researcher examined the concept of the sexual impulse medication treatment, and defined the legal nature of sexual impulse medication treatment as preventive restrictions. Preventive restriction is not a criminal punishment, but it belongs to a criminal sanction. Hence the sexual impulse medication treatment shall not violate the preventive restriction principle of no penalty without law as prescribed by the Article 12 (1) of the Constitution of the Republic of Korea. On the cause of the judicial evaluation in which the court’s ruling is involved,however, the Sexual Impulse Medication Treatment Act specifies that the consent of the sexual impulse medication treatment subject shall not be required. In the end, this provision would run counter to various principles: self-determination right, the right not to be physically harmed, and the double jeopardy rule, etc. In the light of this viewpoint, the researcher is able to reach a conclusion that the foundation of the Sexual Impulse Medication Treatment Act is insecure, and includes a number of non-constitutional factors. Until now, we have conducted quite active research on the sex crime victim; in the meantime, the studies about sex offenders are just a few and unsatisfactory. After all, this is the fact that our society focuses only on one side of criminal cause, as they forget there is the other side of the coin. In line with this, we should concentrate more on developments of diverse programs in order not to have criminal acts occurred by examining the causes of crime thoroughly, instead of resolving the criminal cases by means of severe punishment and criminal sanction. After all, although the Sexual Impulse Medication Treatment Act which will come into force from July 24, 2011 assumes a characteristic of preventive restriction, the medication treatment could be considered as a criminal punishment. As long as people understand this act with such significance, it seems that there are almost no grounds for the Sexual Impulse Medication Treatment Act. Therefore,the Sexual Impulse Medication Treatment Act needs to be revised rather than being enforced under the situation where the issues related to human rights abuses have not been completely resolved; otherwise,this act should be rescinded.