피해자 권리의 실효성 확보에 관한 소고

Abstract

Korean legal system might be said that it has established the minimum legal basis for protecting the crime victims’rights through legislating or amending the constitution, criminal procedure law and other special codes until now. However, even though the legal system seems to be built successfully at a glance, it does not result automatically in securing the victims’real rights. On a surface, they pretend to be the victims’rights but actually they belong to ‘illusionary rights’. There are many cases which the victims’ rights have functioned as the illusionary rights on the federal laws and state constitution in America. Similarly, if being analyzed the characteristic of various victims’ rights in Korea, some have been proved to be real such as the right of securing personal safety, on the other hand, however, some illusionary such as the right to timely notice of any public proceeding, not to be excluded from any such public proceeding, and to full restitution as provided in law. To become real, crime victims’ rights must be accompanied by victim standing through solving discretion problem, meaningful remedy, and review as a matter of right. In the case of Korea, the scope of victims’participation into criminal proceeding should be enlarged much more so that victims could address their own interest at every step of the criminal procedure. Secondly, the courts should try to make a judicial review positively with a deep understanding to victims’ suffering. Thirdly, the legislators should use the mandatory language as much as they can. I f they cannot help using the discretionary language, the more detailed instructions should be offered on the sub-code level or the independent regulative agency should be established for controlling the abuse of discretion of criminal authorities.