보안처분 관련 준수사항위반죄의 비교법적 고찰 - 한국과 독일의 준수사항위반죄 비교를 중심으로 -

다국어 초록 (Multilingual Abstract)

In Korea, probation has been introduced as the center of criminal policy related to community treatment. Probation was valued as it was used at the prosecutors prosecution stage, in the trial of the department, and in the execution of sentences. Probation guidance and supervision is based on the observance(items) for probation. There is are general observance for probation that appliesy to all subjects and special observance that focuses on the subjects lifestyle and behavior correction and adaptation to social life.
In the 2000s, sexual violence crimes overwhelmed the social climate regarding criminal policy in Korea. The public demanded special measures against sexual violence offenders, and the legislation came to fruition on April 27, 2007 with the Act on Electronic Monitoring. This law stipulates the imposition of an attachment order or probation for certain criminals whose recidivism risk is expected to not improve even after the end of their sentence.
Subsequent revisions introduced observance of attachment orders, and violations of these observance were dealt with by criminal penalties. In addition, attachment orders and probation under the Act on Probation were necessarily applied concurrently, and observance for probation were also utilized in the treatment of attachment orders. In the process of enforcing these security measures, it may be insufficient to achieve the purpose of the measures by issuing a warning for non-compliance with the observance, extending the period of the measures, or adding or changing the observance. This is because the preventive function of punishment operates passively. As a countermeasure to this, the crime of violating the observance of security measures is stipulated as an attachment order, pharmacologic treatment order and probation after the end of treatment custody. However, probation combined with existing criminal policy exit strategies such as suspended sentences, parole and provisional release is exposing several problems, as it is directly reflected in the security measures implemented after the end of sentence execution.
In other words, the fact that the enforcement of security measures is not carried out individually reflecting the characteristics of subject, that rulling and execution of security measures can be arbitrarily carried out, that the continuity of compliance in the case of provisional termination of security measures does not consistent each measure, that each security measure stipulates its own observance and applies the general observance and special observance of probation, the problem of the number of crimes for violation of observance inevitablly arises as a violation of the special observance is a violation of the general observance.
In Germany, rigid probation (Fürungsaufsicht in German) is defined as a type of security measure, and is implemented as an independent security measure separate from probation (Bewährungshilfe in German) as a variant of punishment execution. Only the rigid probation stipulates a crime of violation of observance and does not stipulate penalties of special observance other than statutory observance. The court oversees the sentence, execution and termination of security measures, and violation of observance is stipulated as a crime of violation of observance.