형사소송절차상 관행으로서 형사합의에 관한 실증적 연구

Abstract

Though not officially institutionalized as a part of the criminal procedure, ‘criminal settlements’ currently practiced in Korea have actual legal significance. This study investigates how this unofficial practice of ‘criminal settlement’ is being practiced in the criminal justice system. For this purpose, qualitative analyses were performed on empirical data collected from various sources including interviews with legal practitioners and other literatures of non-academic nature. The findings of this study are summarized below. Criminal settlements have certain legal effects within the criminal procedure because: 1) they represent a dispute resolution method based on reconciliation agreement between the assailant and the victim aimed at restoration for the victim,and 2) such unofficial dispute resolution is considered during official criminal procedure by means of the ‘subsidiarity principle’ under Korean criminal law. During a criminal litigation, criminal settlements are considered through two concepts under the criminal law: victim’s unwillingness to punish the defendant, and the defendant’s efforts for restoration. The unofficial legal practice employs a systemized procedure for confirming and considering such concepts. Criminal settlement,considered as a dispute resolution method through restoration, comes to constitute a legal custom within modern criminal procedure in the following way. As the civil procedure is separated from the criminal procedure, the judicial bodies do not officially intervene in the processes and details of settlements between private entities, only focusing on the victim’s unwillingness to punish as a ground for its adjudication. This results in the processes and details of the settlements being left in the private sphere. In addition, as the system of criminal law is based on adversary system which focuses on punishing the assailant, criminal settlements are considered only as an evidence of the defendant’s efforts for restoration. This reflects only the defendant’s point of view, while no institutional remedy is available for confirming and evaluating the actual ef frto f ro r estoration i n the victim’s p oint o f view. U nder t hese circumstances, criminal settlements are re-interpreted as a part of the defendant’s right to defend, not as a way to restitute for the injuries suffered by the victim.