형사재판절차에서의 범죄피해자참가제도의 도입 방안

Abstract

In the criminal justice system, one of the reforms essential to protecting the individual dignity of crime victims and helping them to recover from the injuries of crime is to give crime victims the right to participate in criminal procedures, not as ‘parties of criminal cases’ but as ‘parties of criminal justice proceedings in their criminal cases.’ Although the amended Criminal Procedure Act of 2007 contains much improvement in protecting the rights of crime victims, the direct participation of victims in the criminal justice proceedings has not been systematically guaranteed. The recent attempt by the Korean Ministry of Justice to enact a law for victims’ direct participation in the criminal justice proceedings and to investigate similar systems of other countries (e.g., Germany, Japan) has been deemed very desirable. In order to adopt a direct participation system for crime victims, two possible ways are presently being considered. In the first proposal, crime victims become adverse parties in criminal trials (as in China or Germany). This proposal would require wide-ranging reforms of the current structure of the criminal litigation. Under the second way, crime victims are still participants in the criminal proceedings, but their right to and scope of participation is broadly expanded (as in Japan). This latter system allows the court to maintain—or only slightly modify—present criminal justice practices. I suggest the implementation of a victim participation system in Korea based primarily on the second model, but allowing crime victims abroad range of rights to participate in the criminal procedure, eventually admitting crime victims as quasi-adversarial parties at trial. After the initial implementation of the system, I believe that the second step is to move toward legislation following the first participation model. However, since the first model requires such tremendous changes in the present Korean criminal justice system, close monitoring of the victim participation model and further public discussions on this topic should be a prerequisite for adopting this model. The details of the victim participation system that I propose in this article are as follows. Victims of specific violent crimes or sexual offenses (i.e., those who are the most needed to participate in the criminal justice procedures) will be conferred the following rights: the right to attend on trial date, the right to state an opinion against the prosecutor’s exercise of discretion, the right to request evidence, the right to examine a witness, the right to examine any and all defendants, and the right to state an opinion on the finding of facts and the application of law. Furthermore, the crime victims’ right to present persons in certain reliable relationships in criminal proceedings and their right to hold personal safety measures will be guaranteed more firmly based on the existing practices of exercising these rights. However, I disagree with the victim’s right to interrogate witnesses through video or other transmission devices because this right does not fit well the key purpose of the victim participation system—i.e., the victim’s direct participation in the trial. Lastly, I believe it is necessary to introduce the victim attorney system, within which the participating victims are able to substantially exercise their rights. The court-appointed defense attorney for the participating victims should also be considered in order to make this system more practical to indigent crime victims. Another change that is more than welcome is where crime victims assume the leading role in criminal justice procedures through a victim participation system. On the other hand, the victim participation system also contains the possibility of accelerating social violence in the form of personal revenge. Therefore, constant efforts to keep this system within the overall goal of criminal justice should be continued.