적법절차의 원칙과 행형에 대한 사법적 통제

Abstract

Art. 12 Par. (1) and Par. (3) of the Korean Constitution, amended most recently in 1987, added the phrase "due process of law," which is originated from the U.S. Constitution. And Korean Constitutional Court held that the principle of due process applies not only to the criminal procedure, but also to all other government actions and that it requires both the procedure and substance of government actions to be reasonable and fair. But the principle has not been fully realized in correction, because the supervisory jurisdiction of court did not extended to all decisions taken by Correctional Service. On the contrary, German and France have Judicial Control system over the Correction(correctional court, correctional court judge) and their courts have jurisdiction to review the disciplinary adjudication of Prison Service. Under the Prison Act, prisoners have the right to pursue a request or complaint connected to or arising from there imprisonment with the governor of the prison. But the scheme is generally regarded as unsatisfactory for it is inefficient, slow and lacking in coherence. Then what is the proper forum in which to commence proceedings? The answer of this question will involve private law claims for damages and public law challenges to administrative decision by means of an application for judicial review, as well as the remedies available under the Constitutional Court Act. The this paper insists that the jurisdiction of courts should be extended in order to grant relief against the abuse of power in prison and correctional court system should be introduced to build up the Judicial Control over the Correction.