배상명령제도의 활성화방안

Abstract

The purpose of this study was to devise activation plans for the restitution system. For that purpose, the study identified problems with the system, explored improvement measures, and proposed a system required for its activation. Problems with the restitution system were approached in three areas, which include problems with the crimes subject to restitution, those with the scope of compensation for damages, and those with the regulations to restrict restitution. First, it is reasonable to set the crimes subject to restitution as certain rights rather than the current limited enumeration method. Secondly, the scope of compensation for damages should include loss profit and funeral costs. In addition, a set of criteria should be set for estimation of consolation money. Finally, the current Article 25, Clause 3 of Special Act on Lawsuit Facilitation lists a group of cases that allow the court to give a restitution judgment. However, the provision is too abstract and serves as a ground provision for the judge not to give a restitution judgment according to his or her conclusion. The study thus proposed improvement measures on the regulations to restrict restitution. The study also proposed five systems required for the activation of the restitution system as follows:First, a regulation to make it mandatory for the defendant to report his or her property should be introduced in order to guarantee the effectiveness of restitution. Second, a regulation to make restitution based on authority mandatory should be introduced. The regulation allows the court to give a restitution judgment based on its authority in case that the intention of the defendant is likely to be suppressed or restricted by the plaintiff or the offender or it is difficult to expect normal judgment from the defendant. Third, the prosecutor's obligation to give a notice of compensation application in the current Special Act on Lawsuit Facilitation should be expanded to his or her obligation for explanation or cooperation. Fourth, the discovery system should be expanded, as well. Fifth, the attorney of crime victim system should be introduced to help the victim in independent status from the defendant or investigation agency in the criminal procedure.