형사제재의 실질적 이원주의 정립을 위한 소고-재범의 위험성 판단과 관련하여

In the Dual Criminal Sanction System, Security Measures are sentenced, executed, and terminated based on the Risk of Recidivism, unlike punishment, so it is important to check whether recidivism is actually committed through risk prediction. However, even if many predictive tools with scientific foundations are developed, it should not be overlooked that predictions are inherently combined with uncertainty and are therefore not always completely reliable. The fact that an individual can be claasified unreasonably as dangerous should not be underestimated, especially in the realm of serious crime. Therefore, criminal justice experts should make efforts to make as few false predictions as possible by using the rule of law instruments. These include, for example, the preparation of strict formal and practical prerequisites based on the risk of recidivism, consideration of the timing and continuous review for practically determining the risk for the execution of security disposition, and procedural justification such as guaranteeing the right to participate in decisions related to security measures. In this article, will focus on the discussion on the timing of the judgment as a procedural starting point for making a judgment on the risk of recidivism, which is the basis and limitation of the security measures. So, first, the current situation in question related to the judgment of the risk of recidivism for imposition of security measures in the dual criminal sanction system is examined, and critically reviewed whether the current security measures related laws are well reflected and operated. After grasping the problem in this way, will try to find a clue for a solution to establish a substantial dualism of criminal sanctions by referring to existing discussions.