소년법상 선의제도에 관한 비판적 고찰

Abstract

The United Nations Convention on the Rights of the Child provides that: “The best interests of children in all activities concerning children conducted by public or private social welfare institutions, courts, administrative authorities, or legislative bodies, etc. should be considered first and foremost.(Article 3, Clause 1)” The juvenile law stipulates that: The purpose is to help the boy grow up soundly by taking necessary measures, such as environmental adjustment and protective disposition for the correction of behavior of the anti-social boy, and by taking special measures on criminal disposition.(Article 1)” There will be countless reasons why a boy should be protected. But to summarize the problems that appear in the application process of the current Criminal Procedure Act and the juvenile law, In other words, if a juvenile offender meets a so-called good prosecutor or judge or is lucky, he or she can receive a minor protective measure rather than a criminal disposition, and if he or she is more fortunate, he or she can receive a lighter treatment than a protective one. It is natural that laws should be fair in application and predictable with consistency. However, in the application process of juvenile law, it is difficult to find this spirit only when the law has it. Simply looking at the results, the purpose of juvenile law can be seen as doing well for a boy who has been placed under protective custody. However, there are no specific criteria for the exercise of the primary authority, which is the starting point of the juvenile protection process and the screening stage of the target. So the biggest problem is that a boy who needs protective action can be excluded from the application because he exercises the primary authority by the subjective judgment of the prosecutor and the judge. Thus, in order for juvenile law to serve its purpose faithfully, the opportunity for all juvenile offenders to proceed to juvenile protection procedures will have to be open. And I think that the purpose of juvenile protection is to achieve only when the disposition is made based on the results of sufficient time and professional diagnosis in such opportunities. The spirit of juvenile protection should be reflected not only in the results but also in the procedural aspect.