배상명령 활성화 입법에 대한 평가와 그 시사점

Criminal compensation order introduced in 1981 has been in force for nearly 40 years, but continued to be underutilized. The compensation order system has been criticized continuously, and there have been various proposals for activating the compensation order. These proposals were made through comparative legal review with similar systems that allow victims to obtain compensation orders in foreign criminal proceedings, but most of them have not yet been realized. The continuous criticism by scholars and civic groups has led to several legislative measures to activate the compensation order. However, there have been few studies examining the details and the actual effect that these legislative measures had on the activation of compensation order. This article looks into the details of several legislative measures to activate the compensation order. Through statistics and analysis of compensation order cases, the extent to which these legislative measures influenced the actual use of compensation order was also examined according to several periods. For about 40 years since the compensation order was introduced, various legislative measures were taken to activate the compensation order. Its most important feature is that there were no revisions that meaningfully touched the basic structure of the compensation order, which are ‘limited enumeration of crimes for which the compensation order is possible’, ‘abstract and broad grounds for discretionary dismissal’, ‘the principle of simultaneous progress of fact-finding, sentencing hearing and hearing for compensation order’, ‘the principle of simultaneous judgment of sentence and compensation order’, ‘the absence of appeal system’ and ‘the omission of reasons for compensation order’, and ‘the absence of transition to civil proceedings’, etc. Revisions that did not change the basic structure did not show much effect. Revisions for providing informations or revisions in which judicial administration or prosecutors were involved with administrative efforts had some limited effect. It was the most meaningful revision that added solatium to the category of compensation and added sexual violence crimes to the listed crimes for which the compensation order is possible, but it was not used much largely due to the wide range of reasons for discretionary dismissal and the overwork of judges in the criminal division. There is an inverse relationship between the rate of application for compensation order and the permission rate for compensation application. Judges tend to use the discretionary dismissal more to increase dismissal as the number of cases requesting compensation orders increases. In recent years, both of the rate of application for compensation order and the permission rate for compensation application from 2017 to 2019 have risen significantly together, but this seems to be an unusual phenomenon that was caused by much increased use of the compensation order system as the number of internet frauds and voice phishing scams increased rapidly.