소년의 구속을 필요로 하는 ‘부득이한 경우’

Abstract

The Criminal Procedure Act stipulates that the court may detain the defendant when there is reasonable ground to suspect that he has committed a crime and he falls under the legal requirements. In addition to those requirements, the Juvenile Act requires another strict condition that a juvenile warrant of detention shall not be issued unless the circumstances unavoidably necessitate it. Therefore, the detention rate of juvenile offenders cannot be higher than that of adult criminals theoretically. However, as a matter of fact, according to the statistics, it has been way more frequent for the juvenile offenders to be detained than adult criminals for the last few years. The reason why the statistics is inconsistent with the reality is that the strict rule for detention, ‘under unavoidable circumstances’, which the Juvenile Act stipulates, has not been working in the criminal procedure of detaining juvenile offenders so far. Specifically, it can be easy for investigators like police to detain juvenile offenders who are more applicable to the legal requirements for detention than adult criminals. * Head of Public Safety Department, Police Training Institute. ** Professor, Korean National Police University. To overcome this contradictory reality, the detention of juvenile offenders should be limited under strict condition because the detention might affect the rehabilitation for them badly. One the other hand, another problem is that legal limitation on the detention can allow juvenile offenders to get free easily even though they commit serious crimes. Therefore, this study suggests the practical procedure, ‘Temporary measures instead of the detention’, which is adopted from Japan’s Juvenile Act, to resolve those problems and other related issues. Through the suggested system, I surely expect that the detention rate of juvenile offenders reduce as time goes by, and criminal justice and juvenile justice can be balanced eventually.