「소년법」상 ‘검사송치’의 의의 및 기준

Abstract

The purpose of Korean Juvenile Act is to ensure sound fostering of juveniles by carrying out necessary measures for the environmental adjustment and character correction of juveniles demonstrating anti-social behavior. The term “juvenile” means a person under the age of 19, which includes a juvenile under 14 years of age who has violated a penal provision, and yet shall not be criminally responsible under Article 9 of the Korean Criminal Act; and a juvenile from 14 to 19 who has committed a criminal offense, as well. Juveniles cases shall be tried as protection cases by the Juvenile Department of the Family Court or the Juvenile Department of a district court. So, the public prosecutor who has investigated a case of juvenile offender shall transfer the case to the competent Juvenile Department, in cases where it is deemed, as result of investigation of the case, that there is a cause for protective detention. However, in cases where the Juvenile Department has found criminal facts which deserve imprisonment without prison labor or heavier punishment as a result of an investigation or a trial, and if the Juvenile Department deems it necessary in view of the motive for offending and the nature of the crime committed to impose criminal punishment upon the juvenile concerned, the Juvenile Department shall, by means of a ruling, transfer the case to a public prosecutor. In particular, the Juvenile Department may do so, also in the protection cases transferred from a prosecutor, While the ‘transfer of Juvenile offender to Public Prosecutor’s Office’ takes place quite rarely and in highly exceptional circumstances. it seems nonetheless relevant to examine the law and practice concerning the transfer of Juvenile offender to Public Prosecutor’s Office that opens the way to the criminal prosecution of the juvenile concerned, especially in regard to the primary goals of the juvenile justice system. This article outlines the procedure of the transfer to Public Prosecutor’s Office under the Korean Juvenile Act, reviews the debate about the requirements for the Juvenile Court’s Ruling of the transfer to a public prosecutor, and demonstrates that the rationales and parameters for the transfer of Juvenile offender to Public Prosecutor’s Office can be understood in relation to the role of education in juvenile justice.