보안처분의 정당화 과제와 개선방안

Abstract

Dangerousness of recidivism is the limitation of security measures and the ground to impose them. However, according to the applicable acts of the present security measures, they are imposed without identifying dangerousness of recidivism or executed unconditionally. Thus, this paper suggests that the required conditions for procedural justification of security measures are ① the time to judge needs to be examined first by the court when the prison sentence is terminated or the superintendence of treatment is either temporarily or permanently ended, ② intermediate judgement needs to be regularly operated after the execution is initiated. ③ They should not step aside from judiciary control(or examination of the court) even when they are imposed or during the intermediate judgement, and the prosecutor who claims that the execution needs to be continued or added bears the burden of proof. Security measures are imposed for social safety, which needs to be realized through the improvement of those who are subjected to the measures. Therefore, the current security measures imposed on the ground of committing a minor offense do not accord with security purposes, so the list must be newly modified. In addition, registration, release and notification of personal information, collection and use of DNA identification information and sexual impulse hormone treatment, which are not to ultimately resocialize the objects but just force them to suppress their intention to commit a crime, must be excluded from the sanctions. For reconstruction of the probation system, it needs to be separated as a security supervision according to the legal nature, the supervisory institution needs to be renewed, and restrictive measures to realize the purpose of security measures such as restriction of employment, treatment orders and electric supervision as terms of compliance need to be prepared. The offense against the terms of compliance should be abolished in respect of penal responsiveness to the dangerousness of recidivism, and extension·addition of security measures or establishment of prevention detention (or protection accommodation) need to be examined in forward-looking respects. Since security measures are one of the axes of dualism, they need to be included in the penal code. Though 2011 Amendment of General Part in Criminal Act contains an attempt for this, it is in need of change in that it failed to specify that the object of the principle of proportionality was not a criminal act but dangerousness of recidivism and limitation of basic rights. In addition, the limit of time-based application of the improvement plan suggested in this paper should be on the basis of the time to make a judgement of security measures. In the way that the time to judge the dangerousness of recidivism needs to be imposed according to the applicable laws, it falls outside the prohibition of retroactive legislation.