범죄피해자의 헌법적 권리와 적법절차를 통한 보장

Abstract

Crime victims are eligible for the Constitutional right to claim for aid of criminal victims, right of statement, the right of recovery from damage based on the right to health and the right to avoid secondary damage in criminal procedure. These rights obtain their legitimacy of protection in accordance with Article 37, Paragraph 1 based on Article 10 of the Constitution. However, Article 294, 2 of the Criminal Procedure Act that gives a concrete definition of the right of statement identifies a victim as no more than a witness, which leads to a possible breach of the basic rights and does not stipulate on the right to health. The basic rights of a victim can be ultimately assured by having that victim engage in the criminal procedure and make his or her statement. Due to the presence of Article 37 of the Constitution, Article 12, Paragraph 1 and 3 mean not much more than the procedural due process of law and shrinks its meaning as it is restricted to the personal freedom but since Article 12, Paragraph 1 and 3 are the only provision that concretely stipulates on the restriction of the basic rights, they are meaningful enough if they are understood as the provision that makes clear that ‘any restriction to the basic rights must be accompanied by a legitimate procedure’. If the principle of due process of law is about ‘the procedure to restrict the basic rights’, there is no need to excluded victims from it. In addition, the ‘omission’ of a country in criminal procedure, that is, excluding victims from criminal procedure corresponds to the breach of the basic rights truly based on legislative omission, the principle of due process of law must apply. Meanwhile, the principle of due process of law also means that the right of victim must be protected from the perspective of ‘treatment of a country toward individuals’, in other words ‘safeguard for human rights’. The purpose of the procedural due process of law is to ensure that a disadvantaged party is provided with a chance to participate in decision-making and enforcement related to state actions. Participation must be implemented by ‘hearing’ and supported by ‘notification’. Article 259, 2 and 294, 2 of the Criminal Procedure Act may be presented as the provisions to achieve notification and hearing for victims. However, these provisions fail to adequately stipulate on the Constitutional right of statement and thus must be interpreted in combination instead of on a separate basis. Against this background, the Criminal Procedure Act needs revising, and the laws enacted by the Parliament must observe the principle of due process of law, which makes the revision of the right of statement provision all the more legitimate.