갱생보호의 시간적 적용범위 확장의 필요성과 효용

The current legal concept of re-offending is divided into two main categories. The first is the "narrow concept of re-offending," which views only crimes committed after judicial sentencing as re-offending. The second is the "broad concept of re-offending," which includes all criminal acts committed after an initial offense. According to the "narrow concept of re-offending" adopted by the Probation Act, rehabilitation can only be implemented after judicial sentencing. However, under the "broad concept of re-offending," rehabilitation can also be applied before judicial sentencing. The Probation Act uniformly applies the narrow concept of re-offending to preventive measures such as probation, community service orders, attendance orders, and rehabilitation as outlined in Article 3. This uniform application means that these preventive measures can only take effect after judicial sentencing. However, Article 3(3) of the Act, which addresses rehabilitation, is aimed at preventing re-offending and helping with social reintegration, and it is welfare-based rather than punitive in nature. Yet, the Probation Act applies the narrow concept of re-offending to rehabilitation, limiting its provision to only after judicial sentencing. This creates a gap in re-offending prevention activities during the early stages of the criminal justice process. To resolve this issue, it is necessary to apply the broad concept of re-offending to rehabilitation, unlike security measures which apply the narrow concept of re-offending, in order to extend the temporal scope of rehabilitation to the early stages of the criminal justice process. By doing so, rehabilitation can progress in tandem with the criminal justice process and its timeline. Expanding the temporal scope of rehabilitation would enable individuals to prepare for social reintegration even during the criminal justice process. Moreover, broadening the temporal scope would also naturally expand the scope of individuals eligible for rehabilitation. This expansion would allow for preventive effects against re-offending during the criminal justice process and provide the benefits of rehabilitation even after cases are concluded with acquittals or dismissals. To implement this, institutional measures are necessary, such as introducing a system that allows agencies involved in the criminal justice process to request rehabilitation ex officio, supplementing rehabilitation with probation measures requested by the court, and encouraging voluntary participation through considerations of rehabilitation participation in indictment, sentencing, or parole decisions.