소년법상 ‘보호처분에 해당할 사유’의 판단기준- 대법원 2024. 3. 13.자 2024모398 결정을 중심으로 -

This paper examines the standards for determining “grounds for protective disposition” under Article 50 of the Juvenile Act, focusing on the Supreme Court ruling delivered on March 13, 2024 (2024모398). The ruling is significant in that it comprehensively addressed the question of whether a protective or criminal disposition is appropriate within the dual-track juvenile justice system, which separates protective and criminal procedures. First, the Supreme Court clarified that although the determination of “grounds for protective disposition” lies within judicial discretion, such discretion is limited by the guiding principles of the Juvenile Act and the purpose of protective measures. Notably, the Court laid out specific considerations for cases involving co-offenders, emphasizing that the determination should not be based solely on whether the juvenile is unfit for protection. Instead, it should be based on a comprehensive evaluation, including the gravity of the offense, the victim’s sentiment, and social acceptability. Second, the ruling recognized the illegality of transferring a case to the juvenile division without proper investigation or hearing. It rightly observed that decisions on sentencing or disposition made without sufficient inquiry or without affording all parties involved an opportunity to express their views cannot contribute to the realization of the principles of juvenile protection. However, the ruling also raises serious challenges for juvenile justice practice. Under the current system, professional assessments regarding the necessity of protection are not being adequately conducted. Without such investigation or hearing, the core ideals of the Juvenile Act cannot be fulfilled. The introduction of a mandatory investigation order through legislative reform deserves serious consideration to improve the effectiveness of the current system.