형사공탁제도의 문제점 및 개선방안

An agreement with the victim is a very important factor in sentencing. Therefore, if the defendant fails to reach an agreement with the victim, he or she has no choice but to consider criminal deposit for the victim in order to receive a more favorable judgment. In the past, when the defendant failed to reach an agreement with the victim and the victim’s personal information was unknown, the practice was to request the court to view and copy the victim’s personal information and, if the court granted permission, deposit the information. Only when the court informed the victim of such facts and the victim agreed to disclose his or her personal information, was it possible to obtain information for criminal deposit. Of course, there were side effects such as trying to reach an agreement with the victim too forcefully or trying to secure the victim’s personal information for deposit. Eventually, the special system for criminal deposit was introduced when the Deposit Act was revised. However, the purpose of the revision, which was to secure recovery of damages and favorable sentencing factors without undermining the purpose of criminal justice, which is to protect victims, by allowing criminal deposits for victims even in situations where the victim’s personal information is unknown, has become meaningless due to the emergence of another problem called surprise deposits. In other words, criminal deposits are made against the victim’s will, and this leads to a favorable judgment for the defendant. As criticism of surprise deposits against the victim’s will grew, the revised Deposit Act was revised again shortly after it was implemented, and as a result, the Criminal Procedure Act was also revised, and a device was established to confirm the victim’s will in cases where a defendant makes a criminal deposit. Despite such legal revisions, there are still many problems and new issues that remained when the special system of criminal deposit was implemented. First, although the victim’s intention must be confirmed in the case of criminal deposit, it cannot be ruled out that this procedure may be abused as a strategy to delay the trial. Second, even in cases other than the so-called surprise deposit, if the victim expresses an intention to refuse to receive the deposit in the criminal deposit by the defendant, there is no procedure for the defendant to properly recover the deposit. As a result, the defendant receives the punishment as punishment and cannot recover the deposit as deposit. In order to solve this problem, first, one method could be to limit the time of criminal deposit, which can be considered favorable to the defendant, to two weeks before the sentencing. The two-week period before the sentencing is a time for the victim to sufficiently consider the defendant’s criminal deposit. At the same time, by imposing this time restriction, it is possible to make it impossible for the defendant to use the strategy of delaying the trial for the purpose of reaching an agreement. Second, when the victim does not receive the deposit, the defendant’s procedure for recovering the deposit needs to be made easier. It is not easy to recover the deposit with only the ‘Consent to Recover the Deposit’ submitted by the victim. Therefore, it is necessary to improve the process so that the deposit can be recovered with only the victim’s expression of intent to not receive the deposit to the court or the existence of a document confirming such intent by the court. The defendant’s right to defense is not limited to the area where the suspect is acquitted or the defendant is acquitted. The subject of the criminal deposit is the defendant, and as the victim's intention is valued, it is also important to establish procedures in cases where the original purpose of the law is not achieved.