양형과 피해자

Abstract

CONSTITUTION OF THE REPUBLIC OF KOREA ensures the rights of crime victims at the fundamental rights level by stipulating the right to make statements during judicial proceedings and the right to claim assistance. The necessity of guaranteeing the rights of victims in criminal procedures is an important criterion used in practice when making judgments on specific cases nowadays. Particularly in recent rulings, issues include: ① the revision of sentencing guidelines and changes in the content of ‘non-prosecution requests’ and ‘agreements’ through these revisions, ② the newly implemented criminal deposit, and ③ the distinction and relationship between prosecution conditions and sentencing factors. Traditionally, criminal law has focused on offenders, with victims and their conditions not being a primary concern. Discussions on penal theory have often overlooked victims. To address this, the concept of “restorative justice” is sometimes introduced. However, the status of victims can also be secured through perspectives that view crime as a violation of mutual recognition relationships or through the positive general prevention theory in penal theory. However, considering the provisions of the Criminal Act and the Court Organization Act regarding sentencing, taking victim recovery into account during sentencing can be justified from the perspective of special prevention. Additionally, agreements or deposits should also be seen as meaningful in relation to victim recovery.