소년법 제67조의 위헌성에 대한 검토- 집행유예를 선고받은 소년범을 자격에 관한 특례조항의 적용대상에서 제외할 수 있는가? -

Abstract

Juvenile Act can be what's called special criminal act which is limited in personal coverage in that such an act includes juvenile offenders, juveniles who are against the law, and juveniles with a criminal bent among juveniles under 19 years old. Hence, criminal cases of juveniles shall be applied to the example of general criminal cases without special provisions of Juvenile Act. However, special provisions stipulated in clause of Article 48 of Juvenile Act take special measures against criminal procedures, setting it as the main aim to help juveniles grow healthy. A general and broad review about special provisions of Juvenile Act has often been discussed in the academic circles, up to now. But as Article 67 of Juvenile Act related to ‘the Legislative Coverage of Criteria’ which has rarely been the focus of discussion relatively compared with any other special clauses is recently proclaimed as the decision incompatible with the constitution, it is judged that the field for the discussion about it would be provided. On January 25 2018, the Consitutional Court ruled that Article 67 was incompatible with the Constitution and ordered that the legislative clause would be applied continually until December 31 2018 when such a clause would be revised. The legislative body took the prompt measures against this immediately after the Consitutional Court made such a decision. Some legislative revision bills on Juvenile Act issued by Representative Haek Hye-ryeon on January 26 2018 were in response to it. It can be said that this was proposed with the main aim to complement the defect of the current laws incurred by the Consitutional Court's incompatible decision, by amending the pertained regulations so that the special case in Article 67 of Juvenile Act could be applied into the declaration of a stay of execution just like the sentence of imprisonment. In this regard, the study will analyze the provisions and specific issues in Article 67 of Juvenile Act and conduct a comparison with the declaration of a stay of execution and the sentence of imprisonment in consideration of the legal and factual attributes of the declaration of a stay of execution to review the validity of the decision incompatible with the Consitutional Court as to Article 67 of Juvenile Act and some legislative revision bills on it.