프랑스·독일·일본에서의 범죄피해자의 형사절차 참가제도와 우리나라에 대한 시사점

Abstract

France and Germany, that have adopted private prosecution or recognize private participation in litigation, guarantee crime victims the right to participate in criminal proceedings, allowing them to seek redress and protect their rights. However Japan and Korea, which operate criminal procedures based on the principle of state prosecution, perceive the state criminal procedures as an adversarial relationship between the criminal justice agencies and the criminals, and views crime victims as mere objects of protection and support or as targets of preferential measures. Recently, Japan has introduced a system that guarantees crime victims the right to participate in criminal proceedings to a limited extent. Korea attempted to revise the law to introduce a victim participation system that was much weaker than that of France or Germany, and even Japan, but it was ultimately frustrated. Whenever the neglect of the protection of the human rights of crime victims becomes a social issue, the Korean government has established and implemented measures to strengthen the rights of victims. However, except for victims of crimes that attract social attention, such as sexual assault or stalking, the poor status of victims of crimes such as murder, assault, and fraud has not improved much. With only these intermittent and sporadic measures, it is difficult to properly fulfill the state's duty to protect crime victims. In order to improve the poor status of victims, it is necessary to create a principle provision on the protection of suspects' rights and participation in criminal procedures in the Constitution, and declare at the beginning of the Criminal Procedure Act that the rights of crime victims should be protected. And then a device must be established to protect crime victims in a series of criminal procedures such as investigation, prosecution, trial, and execution of sentence. In particular, it is necessary to build a system that stipulates the right of crime victims to express their opinions at each important stage of the criminal procedure, such as the conclusion of the investigation, decision not to prosecute, decision on detention, pronouncement of judgment, and suspension of execution of sentence, and to notify the progress of the criminal procedure.