소년사법체계와 선의주의 모델

Abstract

The Juvenile Law adopted the prosecutor's prior authority over juvenile process-choice when the Juvenile Law was enacted in 1958. During the first revision of the Juvenile Law in 1963 and the third revision of the Juvenile Law in 1988, there were discussions about switching from prosecutor's prior authority to court's prior authority, but it was not actually reflected in the law. In the Fourth Juvenile Law Amendment of 2007, the introduction of the court's prior authority and the foundation of independent juvenile courts were raised again, but after intensive discussion, the current prosecutor's prior authority in juvenile justice system was retained. The following problems with the prior authority model in juvenile justice system have been pointed out in various research papers. The problems of the prosecutor's prior authority model are summarized as the limitation of realizing the philosophy of juvenile protection, duplication of juvenile case processing procedures and delays in processing, unclear criteria for selecting juvenile case processing procedures, and infringement of equity in juvenile dispositions. On the other hand, the problem of court's prior authority is summarized as the ambiguity of who judges the proceedings in the juvenile court, and the duplication and delay of juvenile proceedings. These problems can be mitigated or even improved in the short term through improvements in juvenile justice practices and institutions. However, these are fundamental problems of the juvenile justice system that cannot be solved without the foundation of independent specialized juvenile courts and the realization of court's prior authority model. First of all, we should lay the foundation for the transition to the court's prior authority model by operating limited the prosecutor's prior authority in the short term. Based on this foundation, it is hoped that in the medium to long term, the establishment of juvenile courts that realize the court's prior authority in the form of procedural separation and jurisdictional consolidation will bear fruit. The selection of the prior authority model in juvenile justice system is not a matter of normative logic, but rather a matter of policy decision based on judgment of the appropriateness of a particular prior authority model. The judgment of whether the choice of the prior authority model of juvenile law is reasonable is based on a comparative review of which model is more in line with the ideology of juvenile protection and the purpose of juvenile justice.