범죄피해 배상제도에 관한 고찰
- 법과대학 법학과
- Issue Date
- 서울대학교 대학원
- Collateral Action; Adhäsionsverfahren; Order of Compensation system; Restitution money provision system; restitution; civil conciliation; res judicata; priority of restitution
- 학위논문 (석사)-- 서울대학교 대학원 : 법학과, 2017. 2. 오정후.
- The Order of compensation system, resolving both civil and criminal legal issue at the same time in criminal prosedure, is a useful method which has several merits by providing one-time solution concerning situation of violation of law.
Collateral Action(Adhäsionsverfahren in German) in Germany and the Compensation Order in Japan are equivalent to a civil courts ruling in effect, so they are more powerful than our Order of Compensation.
In light of the following reasons Germany provides broad protection for crime victims. Firstly, in German criminal procedure the restoration of damage is regarded crucial. In criminal law, the restitution of victims damage caused by crime is specified as major factor to consider in penalty decision and furthermore, with regard to misdemeanor, the restitution could be taken as penalty exemption factor. Secondly, in Germany, the scope of crime of regarding Collateral Action is not restricted.
In U.S.A., it is declared that the collection of restitution is prior to execution of monetary penalty. In addition, government is responsible for supporting the victims by performing the collection of restitution. In Japan, the restitution could be directly paid to victims with funds formed from the confiscated or collected property of criminals, which called the Restitution Money Provision System.
In Korea, more attention should be paid to developing more sophisticated method of restitution for victims. In Korea, the Order of Compensation system is not identical to civil proceedings and has institutional limit and time constraints which result in insufficient trial. Therefore, as of now, granting res judicata to the current Order of Compensation in Korea is unrealistic.
However, gradual improvement is needed to the Order of Compensation system of Korea. Here are two suggestions that I would like to bring up in order to reform the system and enhance the sufficient trial and revitalize the Order of Compensation System. One is that the provision which mandates the Order of Compensation be declared at the time of sentence needs to be amended toward lessening time constraint of compensation trial. This measure will allow court to review the Order of Compensation case with more sufficient time and to be relieved from time constraint in trial. The other measure is to combine Civil Conciliation System with Order of Compensation case. It will enable more compensation case to be solved with the help of free and active exchange of opinions between criminals and victims.
In addition, direct compensation provided by government could be taken into account. Some portion of revenue from fine, confiscation and levy in addition should be incorporated into the special government account and then, government should allot the account subject to compensation or reimbursement for victims.
The purpose of overcoming crime in a perfect way could not be achieved just by cracking down criminals. In the end, it could be fully achieved by providing satisfactory compensation to crime victims. At the regard of this, Im looking forward to full restoration from crime damage through improvement of Order of Compensation System and conative and direct intervention of government for compensation of crime damage.