형사조정제도의 과거, 현재, 미래

Abstract

Critiques argue that the main goal of criminal mediation system is to alleviate the workloads of prosecutors rather than pursuing the spirit of restorative justice while others believe that it does perform as a form of restorative justice which restores damages inflicted on victims promptly. Despite the controversies, it acquired legal basis in 10 years after the enforcement and reinforced its status as an important system that applies restorative justice to prosecutors’ practices, which went beyond dealing with mere accusation cases. As the system is acknowledged and recommended by the United Nations, it needs to establish itself as Alternative Dispute Resolution(ADR) that includes public engagement over the criminal justice procedures. This requires improvements in multiple aspects, including policy dimension. First of all, implementation capability for agreement should be prepared. That is, tools that can guarantee the effectiveness such as civil mediation and administrative mediation that provide validity of reconciliation in the court proceedings need to be arranged. Secondly, permanent criminal mediation centre should be established. Either temporary or stepwise, it has to be mobilised as a part of the Prosecutors’ Office and the extent of application needs to be expanded to police and court level rather than being limited to the prosecutors’ level. There should be a conflict resolution method before proceeding to the criminal justice procedures and conciliation–prepositive principle would be one of the effective ways. Thirdly, synthesised laws on criminal mediation needs to be prepared. Currently the basis of mediation is in the Victim Protection Act but in order to develop itself as a permanent criminal mediation centre, the formation shall change as a special law. Lastly, conditional suspension of prosecution through mediation should be introduced and utilised. As can be seen from the countries overseas, the authority needs to utilise it actively to address juvenile cases. Thus, criminal mediation shall be affiliated with the conditional suspension of prosecution.