위치추적 전자감시제도의 소급적용에 대한 비판적 고찰

Abstract

It is rare to find a solution to the issue on whether or not the basic principle banning retroactive punishment is applied to the location tracking electronic monitoring system due to inherent limitation that emerged during the days when only the criminal sanctions used to exist as the basic principle banning retroactive punishment. With regard to the area of sanctions which is classified as security measure, not as punishment, it can be said that the basic principle banning retroactive punishment is not applicable, but it is impractical to really understand current situation that a variety of criminal sanctions are emerging only with such a schematic conclusion. It is because that its characteristic cannot be understood as a security measure or punishment having the full significance and criminal sanctions connoting characteristics of the both are continuously appearing. Based on such a critical mind, this manuscript first look into the process of enactment and change of location tracking electronic monitoring system aiming at making a critical analysis on the attitude of supplementary provisions of the Act on Attachment of Electronic Device that acknowledges retroactive application of location tracking electronic monitoring system and inquire thoroughly into the legal characteristics of the same system on the basis of existing discussions. Next, after examining the grounds for an argument which is asserted from the part answering in the affirmative about retroactive application of location tracking electronic monitoring system, this manuscript intends to terminate an argument by setting forth a counterargument from the stance denying retroactive application focusing on the meaning of punishment what the basic principle banning retroactive punishment says, location tracking electronic monitoring system having penal characteristic and an infringement of liberty caused by the location tracking electronic monitoring system, problems of tentatively named ‘principle banning retroactive punishment within 3 years after execution of the sentence’ and implication of revised way of legislation.