전자감시제도의 확대와 소급형벌금지의 원칙

Abstract

Electronic Monitoring system was introduced to prevent the specific crimes in high recidivism rate and that arouses irrecoverable invasion to legal interests such as sexual crimes, murders, and kidnaps of under-aged person. In the initial stage of it's introduction, there were controversial arguments on the possibility of violation of the principle of double punishment prohibition. In the meantime, based on the public opinion, the legislators provided the supplementary provision on 15 of April in 2010, which allows retroactive application to ex-convicts who commit a crime before the enforcement of the act of attachment of electronic device for position tracking. Due to this, there was another argument which doubts about the fact whether retroactive application of Electronic Monitoring system violates legal security, protection of trust of criminals and then the principle of legality and the principle of non-retroactivity of punishment. On this argument, there is certain perspective discrepancy between the theoretical view point and the judicial precedent. The main stream of the theory consider Electronic Monitoring system as a measures of security in the characteristic of punitive sanctions so that this system is against the principle of legality and the principle of non-retroactivity of punishment. Meanwhile, the judicial precedent considers Electronic Monitoring system as a measures of security which is not for punitive sanctions, but for securing society through the prevention of crime, so that the retroactive application of the system is not against the principle of legality and the principle of non-retroactivity of punishment. In this study, we consider the electronic monitoring system as measures of security, limiting basic human right for the protection of public interests, not as a punitive sanctions or securing society through the prevention of crime. We take on the approach that the retroactive application of the system corresponds with the principle of retroactive prohibition as the general principles of law, not the principle of non-retroactivity of punishment derived from the principle of “nulla poena[nullum crimen] sine lege”. Therefore, we tired to solve the problem of allowance of the retroactive application of the system through the principle of proportion and careful measurement between the invaded interest and the possibly protected interest by the retroactive application.