형사제재 내에서의 피해회복제도 도입에 관한 시론

The key driver of legislative developments in criminal justice has undoubtedly been reparation for victims. However, reparation is still regarded as unrelated to the purpose of criminal sanctions. Even in the comprehensive amendment to the Criminal Code proposed last year by the Korean Society of Criminal Law after much deliberation, the perspective of reparation was omitted, suggesting that it is still considered incompatible with criminal sanctions. However, reparation can be sufficiently aligned with the existing justifications and objectives of criminal sanctions and has ample potential to be newly incorporated as one of their aims. Given that the law is inherently a product of its time, continually evolving through dialogue with society, criminal law and criminal sanctions should not remain entrenched in their historical foundations but should instead respond to new societal voices and continue to develop. Reparation is one of the pressing demands facing criminal law today, and comparative legal analysis confirms that this is a common phenomenon observed in many countries, not just in Korea. This paper proposes several measures to incorporate reparation within the framework of criminal sanctions. First, it is necessary to design a system in which reparation is imposed as a condition for dispositional decisions by investigative authorities. Second, the establishment of reparation orders as an independent sanction is worth considering. Third, reparation should be explicitly recognised as a sentencing principle and be stipulated as grounds for discretionary mitigation or exemption of penalties. Fourth, a system should be introduced whereby reparation is mandated as a condition for a suspended sentence or probation. Fifth, efforts should be made to facilitate reparation during the execution of sentences.