보호감호집행의 합헌성 기준

Abstract

Currently, there are more than 15 custodians in Cheonan Prison. Protected custody refers to those who continue to be detained in a detention facility and receive protective custody for the reason of ‘the risk of recidivism’ after the end of the sentence. As a well-known fact, the protective custody system was abolished in 2005, 18 years ago, amid controversy over its unconstitutionality. At that time, the protective custody system allowed those who were already responsible for the crime as punishment to be detained for up to 7 years for a long time on the grounds of ‘future danger’, which was ‘double punishment’ and ‘excessive infringement on physical freedom’ was criticized for Accepting this criticism, the legislature repealed the Social Protection Act in 2005. However, a ‘transitional provision’ was placed in the supplementary provisions of the abolition law, so that the effect of the protective detention sentence finalized at the time of the repeal was maintained. As a result, until now, in 2023, “protected guardians” still exist. Of course, there has been considerable controversy over the ‘transitional regulations’. However, the Constitutional Court decided that the ‘transitional provisions’ were constitutional, and the reason for this was that the confusion that would arise when a large number of people at risk of recidivism were released should be taken into account, and if there is a problem with the enforcement method of protective detention, it should be improved. It could be done, but it was said that there was no problem because the enforcement method of protective detention was already being executed differently from imprisonment. This thesis is not intended to deal with the unconstitutionality of the ‘protective detention’ system, which has already been discussed a lot in the past, but to make the ‘enforcement’ of protective detention a suitable and necessary means for its essential purpose, especially to be punished and discriminated against. We aim to review how well it is being operated, or how it is being operated. This proposal also took into consideration the discussion on the reintroduction of protective custody, which is being attempted in the name of “acceptance of protection.” This study was conducted by analyzing the contents of the Federal Constitutional Court's decision and the European Court of Human Rights' decision on protective detention in Germany, which has a system similar to ours, as the main comparison object.