「보호수용법」 제정(안)에 대한 보완적 검토

Before examining die Sicherungsverwahrung, it is necessary to discuss protective custody in social protection act which was established by law in December, 1980. The protective custody was a symbol of vicious criminal sanction in the past time. It was a double punishment, which was against the principle of Korean Constitution. There was also a doubt if it could defend society as a lawful tool rehabilitating felons or habitual criminals. For these reasons it was finally abolished in South Korea, 2005. Recently Korean Criminal Law has started emphasizing severe punishments against felons, which has led to aggravating punishments and legislating (or amending) various special laws to diversify security measures. This trend, however, has weakened the principle of responsibility and the security measures have practically become punishment. The revised bill of Criminal Law in 2011, accordingly, tried to include die Sicherungsverwahrung out of social protection act. It also tried to strengthen the principle of responsibility, reject heavy penalty system. It finally tried to hand over the role of crime prevention to security measures, which could be a legal model of dualistic restriction. It is, of course, prerequisite to abolish the regulation of habitual and cumulative crimes before introducing die Sicherungsverwahrung. It was, however, automatically abrogated as parliamentary session came to a close. The Minister of Justice preannounced legislation of die Sicherungsverwahrung on September 3, 2014. This is, however, merely an another name of the past “protective custody.” It is no different from the revised bill of Criminal Law in 2011 related to die Sicherungsverwahrung. It is not right to just ignore adopting die Sicherungsverwahrung. It seems not right to merely focus on pros and cons of readopting it. It is pending and important to design a system to use it rightly and properly when legislating die Sicherungsverwahrung.