형사절차상 소년범 구속제도의 개선방안

The continuous occurrences of atrocious juvenile crimes have emerged as a serious social problem recently. There are no means of physical securement except detention in criminal proceedings for such juveniles who committed a crime. Regarding criminal cases, it is prohibited to issue a warrant of detention for juveniles except in unavoidable circumstances. It is understood that the purpose of this is that the detention of juvenile offenders should be judged more strictly than that of adult offenders. It is necessary to introduce a system that can minimize the gap of supervision for juvenile offenders and effectively respond to juvenile crimes. Therefore, this study investigated improvement direction of the detention system for juvenile offenders after reviewing the detention system for juvenile offenders focusing on Article 55 of the current Juvenile Act and analyzing legislation examples of other countries. First of all, the Juvenile Act only prescribes that juveniles shall be detained only when the circumstances unavoidably necessitate it and if a juvenile is to be detained, he or she must be accommodated separately from adults. Detention is a compulsory disposition aimed at ensuring the progress of criminal proceedings and the execution of punishment. Hence, even juveniles cannot be an exception to this as long as the suspect/defendant has the appropriateness of a criminal charge and grounds for detection. Because no warrant of detention for juveniles can be issued unless there are unavoidable circumstances, there is an additional condition of an unavoidable case along with the grounds for detection of the Criminal Procedure Act in order to detain a juvenile. It is necessary to stipulate the specific grounds for detection for juveniles in the Juvenile Act to accomplish the ideology of protectionism for juveniles while suppressing the abuse of detection. In particular, it is necessary to stipulate in writing the principle of subsidiarity and the principle of proportionality as in the case of Germany to use them as grounds for limiting the detection of juveniles. Furthermore, to give only two choices, detention or no detention, for juvenile criminal suspects in the current investigation procedure, and to make the detection for juveniles the last resort, it is necessary to introduce temporary measures in the investigation stage as an alternative means of achieving the purpose and function of pre-trial detention. In order to properly handle juvenile cases in the investigation stage, it is necessary to obligate the pre-decision investigation of the prosecutor who investigates the behavior and environment of a juvenile. Finally, it is desirable to install independent pre-trial detention facilities for juveniles because it is necessary to block criminal learning by preventing infection of evil ways through separate accommodation of juveniles from adults.