범죄 취약성의 다면성과 형사법적 대응

Criminal vulnerabilities include absolute vulnerabilities, which are objective characteristics people have such as physical immaturity, disability, and pathological conditions, as well as relative vulnerabilities resulting from physical superiority, psychological attributes, economic status, and legal status in relation to others. Relative vulnerability can be further divided into one-time relationship and continuous relationship vulnerability. The response to crimes against the vulnerable has centered on the imposition of heavy punishment and security measures through special laws that address crimes against vulnerable people and laws related to security measures. This approach is problematic in two respects. First, in terms of the effectiveness of sanctions, issuing a heavy punishment is not an appropriate countermeasure because it confuses criminal vulnerability and the socially weak's characteristics and does not recognize the multifaceted nature of vulnerability and the possibility that victims may have multiple vulnerabilities. Secondly, with regard to the principle of prohibition of excess, long sentences and various security measures were applied multiple times without confirming their own justification and special justification as a means of responding to crimes against vulnerable people. Aggravated punishment itself is difficult to justify, and it is difficult to justify even when used for crimes against vulnerable people because the provisions on a crime against the vulnerable should be stipulated in the Criminal Act and also because security measures or other expedients may be more effective. Security measures, however, have their own justification because they have a purpose distinct from punishment, and they are justified even if they are combined with punishment because of the great damage and sustainability of crimes against the vulnerable. If several security measures are imposed together, they are justified if the detailed purpose of each security measure is confirmed. As a response to crimes against the vulnerable, there are “separate security measures” to separate victims from perpetrators, “criminal tendency reduction security measures” to reduce the perpetrator's criminal tendency, and “instrumental security measures” to ensure the implementation of these security measures. At the same time, “separation expedient” by police officers is requested to fill the time difference between separate security measures that require a court sentence and perpetrator's attacks. Since the damage caused by crimes against people with absolute vulnerability can be great, the perpetrator is likely to have a psychological problem, and if it is not a relationship-based crime, a response centered on security measures to reduce criminal propensity is required. With regard to crimes against people with relative vulnerability that occur in a one-time relationship, separation expedients closer to the attack are important because the possibility of further contact between the victim and perpetrator is low. Crimes against people with relative vulnerability that occur in a continuous relationship are highly likely to recur or continue because of ongoing contact between the victim and perpetrator. This is the most dangerous category in terms of risk of recurrence, so separation expedients should be applied in the short term, and separate security measures should be applied in the long term. The two countermeasures must be continuous in relation to the victim. Most importantly, separate security measures, separation expedients, and criminal tendency reduction security measures suitable to address the vulnerability of a victim must be used independently and simultaneously, and security measures imposed should be guaranteed by instrumental security measures.