촉법소년의 과실치상과 학교폭력: 법치(法治)인가, 인치(人治)인가

Abstract

According to the Juvenile Act juvenile mean persons who are 10 years of age or more under 19 years of age(Article 2, 4). The Juvenile Act classify juvenile criminals into two types(Article 4). The one is juvenile who have committed crimes. The other is juvenile who are 10 years of age or more but under 14 years of age who have committed acts in violation of Acts and subordinate statutes relating to criminal punishment. The former is called the beomjoesonyeon(범죄소년) which means juvenile criminals aged 14-18 as a legal term. The latter is called the chogbeobsonyeon(촉법소년) which means juvenile criminals aged 10-13 as a legal term. So according to the Juvenile Act, when juvenile commits a crime, if the age is between 10 and 13 years, the juvenile is the chogbeobsonyeon. The procedure of punishing chogbeobsonyeon for bodily injury crime by negligence (Criminal Act § 266) is overly dependent on the victim. School, police, and juvenile court just look at agreement between the chogbeobsonyeon with victim. Current law tends to force agreement with victim. Bodily injury crime by negligence is unpunishable crime against will of victim which shall not be prosecuted over the express objection of the victim. This is translated to the ban-uisabulbeoljoe(반의사불벌죄) in Korean. Police should send the case of the chogbeobsonyeon to the juvenile court. The prosecutor does not intervene in the case of the chogbeobsonyeon. According to the School Violence Prevention Act, if the victim wishes, school violence committees should be held. It is not the rule of law. It is a procedure according to the person, not a process according to the law. Due process should be observed in the juvenile protection procedure. Parent of the nation(in Latin parens patriae) or paternalism can not take precedence over due process. for parent of the nation. It is necessary to revise the relevant law. For example the chogbeobsonyeon must be granted the choice of protection and criminal procedure. It is necessary to legislate the police diversion for the juvenile criminal. In the case of unpunishable crime against will of victim, the duration of the complaint should be limited.