헌법합치적 소년사법제도에 대한 구상

Abstract

According to the Juvenile Act, which regulates the judicial system related to investigation, prosecution, or trial procedures targeting juvenile delinquency, ‘juvenile’ means a person under the age of 19, that is, a person of the age of 18 and lower. Since the Civil Act refers to a person of the age of 19 and higher as an ‘adult’ and a person under the age of 19 as a ‘minor’, a juvenile under the Juvenile Act and a minor under the Civil Act have the same meaning. Meanwhile, the Criminal Act stipulates that a person under the age of 14, that is, a person of the age of 13 and lower, is called a ‘criminal minor’ and should not be punished. The Juvenile Act categorizes ‘delinquent juveniles’ into criminal juveniles, juvenile delinquents, and juvenile at risk of committing a crime, and stipulates that only criminal juveniles can be subject to punishment or protective measures, while juvenile delinquents and juveniles at risk of committing a crime can only be subject to protective measures. There are 10 types of protective measures under the Juvenile Act, but it is argued that the upper limit of the age for juvenile delinquent between the ages of 10 and 13, to which only protective measures can be imposed, should be lowered to expand the scope of criminal juveniles subject to punishment. Similarly, it is argued that the related regulations should be repealed because protective measures are imposed only on the grounds of the risk of crime even though there is no fact of violating the Penal Code for juveniles between the ages of 10 and 18 who can be subject to protective measures. Legal issues related to juvenile delinquents should be discussed from the perspective of the principle of proportionality of responsibility and punishment, the duty to protect constitutional rights and the principle of prohibition of excessively deficient protection, and the principle of equality and proportionality. And legal issues related to juvenile at risk of committing a crime should be discussed in terms of the principle of clarity and equality.