국친사상의 변화와 소년법 보호처분절차의 개선방향

Abstract

As news reports on cruel crimes committed by minors aroused public opinion of strict punishments, many members of the Korean Assembly have proposed reform bills of the Criminal Act and the Juvenile Act, which shall lower the minimum criminal responsibility age and upper age eligibility subject to the juvenile procedure(consequently the narrowing of minors subject to protective measures) respectively. Following such proposals, the Ministry of Justice recently announced their intention to submit a reform bill, whereby those above mentioned Acts would be revised to the effect that the criminal liability age shall be lowered and the This paper aims at analysing the legal nature, and proposing the reformation, of the protective measures of the juvenile procedure in the Juvenile Act, under the consciousness that the juvenile procedure for protective measures is inappropriate for dealing with juvenile crimes so that those measures have been insufficient for prevention against juvenile crimes and recidivism. Since lots of jurisprudence and practitioners have so far considered juvenile protection procedures of the Juvenile Act as a special criminal procedure for juveniles, it has been overlooked whether the contents of the protective measures of the Juvenile Act are appropriate for the State as a wise corporate parent to discharge its parental role. This paper interprets the protective measure procedure of the Juvenile Act as a care and educational measure in accordance with family law, contrary to the English and German juvenile court procedure, which are to be characterized as a criminal procedure. The protective measure procedure of the Juvenile Act should be regarded as the procedure which materialize the State parent idea codified in the Korean Civil Code. Considering such fact, this paper argues that the protective measures should be of the parents-supportive or parents-substituting nature in terms of caring their children who are beyond parents care capability, rather than of the criminal punishments. ㅡMoreover this paper argues that liberty deprivation measures, which account for non-negligible portion of actual protective measures, should not be taken unless juveniles subject to the protective procedure are exposed to significant risk to self harm and harm against others, but to the extent that liberty deprivation is necessary for the protection of the juveniles in the case and others and for the best interest of the juveniles in the case, and in the condition that the facilities should be small sized accommodations and the detention should last for the period of the said risk continuing. Furthermore, this paper argues that the Juvenile Act should be reformed to the effect that informal procedures should be introduced in the protective measure procedure, and that the authority to take many discretionary measures tailored to the individual care needs of the juveniles in the case meeting should be given to the Juvenile Court judges, because the protective measures are to support or substitute the parental care responsibilities.