보복범죄의 억지와 구속기준

Abstract

The errors in the courts' decisions regarding the detention in cases of retaliatory crimes, such as murder, have been plunging the public into anxiety every time such incidents surface. The issue lies in the criteria for detention stated in Article 70, Clause 1, as the mandatory reasons for detention being "risk of evidence tampering and flight" and in Clause 2, as considerations such as "the severity of the crime, risk of recidivism, and concerns of harm to the victim and key witnesses," which are abstract. Therefore, judges have no choice but to rely on the court's own detention standards (precedents), which, unlike those of the prosecution, lack detailed guidelines for considerations under Article 70, Clause 2. Consequently, they seem to primarily assess the risk of evidence tampering and flight. As a result, the examination of the risk of recidivism and concerns over harm to the victim tends to be passive. This raises the question: Why is the court passive in reflecting considerations under Article 70, Clause 2? The court views the essence of a detention warrant through the principle of the presumption of innocence, treating detention as an exceptional measure for securing the execution of a sentence, based on the principle of proportionality and thus minimally incorporating it, almost excluding preventive detention considerations unrelated directly to the mandatory reasons for detention under Article 70, Clause 1. However, the principle of the presumption of innocence under Article 27, Clause 4 of the Constitution acts as a guiding principle governing the entire criminal procedure, including pre-trial detention, and is a principle of evidence law. The problem is that the presumption of innocence, as a symbolic principle of democracy protecting the rights of the accused, is accepted without any rational doubt by the majority. This leads to a logical contradiction where detention, similar to a sentence of liberty, cannot be originally made. Comparatively, not only in the common law jurisdictions but also in most countries of the civil law tradition, including Japan, the principle of the presumption of innocence is considered to apply only to the law of evidence in trials, not as a guiding principle throughout the criminal procedure. Moreover, most countries in Europe and the common law countries with a long history of democracy accept the preventive detention nature of "severity," "risk of recidivism," and "concerns over harm to the victim" as independent grounds for detention, alongside protecting their citizens from crime. Adopting this would, I believe, deter retaliatory crimes, etc.