소년법상 화해제도의 문제점과 개선방안 - 경찰단계 및 법원단계 회복적 사법 실험연구 결과를 중심으로-

Abstract

In recent years, many people have been concerned about Korean's juvenile justice system. In response to criticism of the juvenile justice system in the 1990's and its ability to effectively reduce recidivism of young offenders, the government drafted a new revised bill on current Juvenile Law. This new bill revised to deal with young offenders who are 10 to 19 has been in force as of June 22, 2008. The new revised Juvenile Law introduces significant reforms that address the weaknesses and the problems in the youth justice system. One of the most important reforms concerns with the provision of "recommendation toward reconciliation(§25-3)" in order to permit the greater use be made of alternative responses outside the youth court process. Although the new revised Juvenile Law has not explicitly mentioned the notion of "restorative justice(RJ)", it is reflected in the recognition of restorative justice, through the provision of "recommendation toward reconciliation" functions as the legislative framework for restorative justice practice. In sum, new revised Juvenile Law does seem to open the door to the development of initiatives generally associated with restorative justice in Korea. Restorative justice(RJ) represents a new paradigm, a new way of looking at crime and reacting to it. RJ can be defined as a process whereby all parties with a stake in a specific offence, including the offender, the victim and their supports(mostly families), collectively resolve how to deal with the aftermath of the offence and its consequences for the future. It is a way of addressing the needs of victims, offenders and communities by focusing on the settlement of the conflicts arising from crime and dealing with the underlying problems which cause it. The force of a revised Bill provides a new opportunity to examine the particular environment resulting from this legislation and to reflect on its directions. Our first task will be to situate the restorative justice practices in the context of formal juvenile justice system. Next, we shall identify the practical issues of RJ in the process of juvenile justice, and focus on the what is at stake and the opportunities provides by this new legal framework. Finally, we shall explore the change be taken to step forward for the RJ values and principles. This project was planned to run for three year(2006-2008), in order to establish "Korean FC Model" as part to RJ practices as an alternative or diversionary process for addressing young offence including school bullying, and to elaborate the guidelines and training manual for RJ practitioners which provide the good practices within the context of broader youth justice system. The main focus of the 2008 project is to assess the effect of RJ practices through the comparative study designed by two groups of participants divided into FC proceeding and the youth court process. This article explores the "Family Conferencing(FC)" Experiment, in order to identify restorative justice practices as an alternative or diversionary process at the pre-charge stage and the court-stage for addressing Juvenile offence. Results from responses of FC participants compared to those of the court groups hold positive views of restorative justice; the outcomes of FC process to be significantly fairer than those of court proceedings. The main results of this research support the importance of "humanistic mediation principles and multi-method approach" for good RJ practices, and demonstrate the issues of FC practices as a effective measure and work best for young offence from the findings on a experimental study in 2008. Based on the research findings, this article suggests the recommendations to change into "good RJ practices" to improve the best treatment possible from the Juvenile justice system in terms of the institutionalization of RJ into the formal juvenile justice system.