보안처분의 형벌성 검토 -형 집행 종료 후 부과되는 보안처분을 중심으로-

The establishment and expansion of security measures in Korea through the enactment of special criminal laws is remarkable. As various measures such as electronic monitoring, chemical treatment for sexual impulses, personal information registration, disclosure, and notification have been introduced and expanded—particularly focusing on sex crimes—the boundaries between punishment and security measures have increasingly blurred. Korea's security measures are trending toward quarantine and surveillance, to the extent that they may be perceived as a form of additional punishment. While the increasing need for social defense itself is not problematic, the relationship between social defense and security measures must be carefully considered. Our criminal justice is now at a turning point. Traditionally, criminal law has aimed to establish justice by punishing offenders. However, now, criminals are not viewed only as punishment targets, but as resocialization targets, and new criminal sanctions are being introduced to protect society from the dangers of criminals. As the role of the criminal law gradually expands, the problem of abuse of the right to punishment arises. This is because the principle of minimum intervention in the criminal law is changed. If these changes in criminal justice are necessary for social defense depending on the seriousness of the crime, a balance point is needed. This paper examines the punitive nature of security measures imposed after the completion of criminal sentences, concluding that they often amount to quarantine- and surveillance-based sanctions. The security disposition systems reviewed were difficult to judge as security dispositions in the practical operation method. Whether or not to judge the risk of recidivism, an important indicator of security disposition, was imposed according to the statutory sentence or at discretion, regardless of the risk of recidivism if certain standards were met. In addition, the principle of proportionality between means to achieve the purpose was not observed even if the purpose was justified due to lack of treatment programs, problems of overlapping imposition, and violations of the rule of surplus funding. In particular, security measures with strong punishment, such as sexual impulse drug treatment, which are difficult to deny punishment, should be strictly executed, and the execution method should be imposed in connection with treatment and supervision, unlike now. The execution method in which security measures imposed after the end of the sentence are imposed repeatedly is the same as punishment such as life imprisonment for the parties, so a justification discussion is needed to establish a system of security measures.