순전한 회복적 사법의 구현으로서 형사조정제도의 전망

Abstract

As a system that realizes the ideology of restorative justice, the criminal mediation system should have the following elements: 1) Victims and perpetrators most affected by the crime should be the main pillars in determining the solution. 2) The state must fulfill its obligation of control through high-quality procedural support so that restorative compensation can be made to the victims. 3) It is necessary to ensure that the therapeutic process is secured through the participation of the community, and that restorative results are derived through the cooperation of the mediation committee members and prosecutors. Criminal mediation is regarded as a well-established program based on the referral rate and the settlement rate since 2007, when it was first introduced in South Korea. However, both quantitative and qualitative success can be secured only when it is operated based on the ideology of restorative justice, and there are things to be improved and reformed: 1) It is desirable to operate a specialized institution-linked coordination system, but it should not be operated as a monetary-based settlement, but rather should be operated so that victims and perpetrators are the main pillars of the issue that can be supported by specialized institutions. 2) Civil cases should be exempted in the course of referrals, so as for criminal mediation to perform as a filter to excessive criminalization. 3) If mediation is established, the parties' trust in the criminal mediation system should not be undermined due to lack of enforcement. In order to overcome these current limitations for an ideal criminal victim-offender mediation (VOM) system: 1) Specialized institutions and judicial institutions should not limit the autonomous and atypical solution process, and support various therapeutic methods. 2) Guidelines be secured to appropriately expand or limit matters subject to criminal mediation and filters out civil cases from entering into the criminal mediation process, while diversification of mediation methods should be systematically established. 3) A mediation center for permanent mediators and trained prosecutors should be established to assure a qualified mediation process. As prerequisites of accomplishing these goals, independent funding is needed, while citizens should be informed of the fundamental nature of VOM as a controlled system that can break the vicious cycle of crime.