고소권자로서 피해자의 범위와 역할 (The Scope and Role of the Victim as Complaint in the Criminal Procedure)

서지정보

· 발행기관 : 한국형사법학회
· 수록지 정보 : 형사법연구 / 22권 / 2호 / 33 ~ 58페이지
· 저자명 : 정도희

초록

It is widely known that a victim, an immediate party interested in a crime, has been neglected on a traditional criminal procedure. A victim stood in a defective and passive position. Since that a victim was not treated as party interested of a criminal case under the criminal judical system even when the victim suffered a secondary damage in a course of a traditional criminal procedure, a victim was nothing but a sufferer.
Lately, making laws protecting the right of victims is a worldwide trend. The growth in recognition that concern having been focused on a suspect and a prisoner needs to be turned toward a victim has relation to appearance of the Victims' Right Movement. It has not been so long that the reality a victim faces has come into notice in our country. A victim started to get interest gradually and such a tendency has shown in legislation. Since defendant' leaving the courtroom in Code of Criminal Procedure was enacted in 1954, Special Act for Speedy Litigation in 1981, and Crime Victim Aid Act in 1982 was established. Then Right of Statement on Trial of a Victim was introduced in 1987 by means of revision of the Constitution. A Special Act on Punishment of Specific Violent Crimes in 1990, an Act on Punishment of Sexual Violent Crimes and Protection of its Victims in 1994, an Special Act for Punishment of Family Violent Crimes and Act on Punishment of Family Violent Crimes and Protection of its Victims in 1997, Specific Crime Reporter Protection Act and so on in 1999, a law about punishment of Act on Punishment of Sexual Violent Crimes and Protection of its Victims in 2003, and Crime Victims Protection Act in 2005 made a contribution to bring a victim into the inside of the judicial system in which a suspect or a prisoner had been centered.
Notion of victims is equivocal. Establishing notion of victims is to determine the subject of the enjoyment of the interests protected by law and establishing the scope of victims is to determine the scope of the interests protected by law of a country. By means of lack of consistent definition in law, the notion and scope of the victims can have a wide variety of definitions according to an individual law.
Current Crime Victims Protection Act widely defines notion of victims as "the individual who suffers from a criminal act by another person, and his or her spouse, lineal relatives and siblings", and a Special Act for Speedy Litigation acknowledges a successor of a victim as person that has right to claim compensation. On top of that, a legislative bill about Act on Punishment of Family Violent Crimes and Protection of its Victims proposed to consider a woman, who is a direct victim, and her children as victims. It is apprehended, however, Crime Victims Protection Act can be used for preserving the order of society, when the scope of victims is recognized to the extent of indirect victims as well as the individual suffering infringement of the interests protected by law. This runs counter to the intent of Victims' Right Movement. Since it is really difficult to establish notion of victims which can be applied to every law, judgment to the possibility of extension of notion of victims should be different in each law.
According to a common view, notion of victims on the criminal code refers to the individual suffering infringement of the interests protected by law. On the other hand, the Constitutional Court doesn't confine notion of victims to the individual suffering infringement of the interests protected by law, but recognizes a person being disadvantaged at law, which is quite different from a common view mentioned above. The fact that the Constitutional Court does not explain about the notion of "disadvantage at law" clearly can cause the establishment of notion of victims to be difficult.
The victim has the right of complaint in the criminal procedure. We have to revise the related provision about the right of complaint to define the notion of victim clearly, considering the notion of direct and indirect victim.
Protection of the right of the victims is fragmentary under the current system. A victim is not a marginal man on the criminal proceedings, but party interested who should be protected of his or her own rights. Hereafter, it is expected that the right of the victims on the criminal proceedings can be protected thoroughly by defining the notion of victim in the criminal code.
The abuse of complaints should be eradicated by amending Article 223 and Article 225, thus disabling the complainant in Article 225 (indirect complainant) to make a complain without the explicit expression of the complaint in Article 223 (direct complainant).

영어초록

It is widely known that a victim, an immediate party interested in a crime, has been neglected on a traditional criminal procedure. A victim stood in a defective and passive position. Since that a victim was not treated as party interested of a criminal case under the criminal judical system even when the victim suffered a secondary damage in a course of a traditional criminal procedure, a victim was nothing but a sufferer.
Lately, making laws protecting the right of victims is a worldwide trend. The growth in recognition that concern having been focused on a suspect and a prisoner needs to be turned toward a victim has relation to appearance of the Victims' Right Movement. It has not been so long that the reality a victim faces has come into notice in our country. A victim started to get interest gradually and such a tendency has shown in legislation. Since defendant' leaving the courtroom in Code of Criminal Procedure was enacted in 1954, Special Act for Speedy Litigation in 1981, and Crime Victim Aid Act in 1982 was established. Then Right of Statement on Trial of a Victim was introduced in 1987 by means of revision of the Constitution. A Special Act on Punishment of Specific Violent Crimes in 1990, an Act on Punishment of Sexual Violent Crimes and Protection of its Victims in 1994, an Special Act for Punishment of Family Violent Crimes and Act on Punishment of Family Violent Crimes and Protection of its Victims in 1997, Specific Crime Reporter Protection Act and so on in 1999, a law about punishment of Act on Punishment of Sexual Violent Crimes and Protection of its Victims in 2003, and Crime Victims Protection Act in 2005 made a contribution to bring a victim into the inside of the judicial system in which a suspect or a prisoner had been centered.
Notion of victims is equivocal. Establishing notion of victims is to determine the subject of the enjoyment of the interests protected by law and establishing the scope of victims is to determine the scope of the interests protected by law of a country. By means of lack of consistent definition in law, the notion and scope of the victims can have a wide variety of definitions according to an individual law.
Current Crime Victims Protection Act widely defines notion of victims as "the individual who suffers from a criminal act by another person, and his or her spouse, lineal relatives and siblings", and a Special Act for Speedy Litigation acknowledges a successor of a victim as person that has right to claim compensation. On top of that, a legislative bill about Act on Punishment of Family Violent Crimes and Protection of its Victims proposed to consider a woman, who is a direct victim, and her children as victims. It is apprehended, however, Crime Victims Protection Act can be used for preserving the order of society, when the scope of victims is recognized to the extent of indirect victims as well as the individual suffering infringement of the interests protected by law. This runs counter to the intent of Victims' Right Movement. Since it is really difficult to establish notion of victims which can be applied to every law, judgment to the possibility of extension of notion of victims should be different in each law.
According to a common view, notion of victims on the criminal code refers to the individual suffering infringement of the interests protected by law. On the other hand, the Constitutional Court doesn't confine notion of victims to the individual suffering infringement of the interests protected by law, but recognizes a person being disadvantaged at law, which is quite different from a common view mentioned above. The fact that the Constitutional Court does not explain about the notion of "disadvantage at law" clearly can cause the establishment of notion of victims to be difficult.
The victim has the right of complaint in the criminal procedure. We have to revise the related provision about the right of complaint to define the notion of victim clearly, considering the notion of direct and indirect victim.
Protection of the right of the victims is fragmentary under the current system. A victim is not a marginal man on the criminal proceedings, but party interested who should be protected of his or her own rights. Hereafter, it is expected that the right of the victims on the criminal proceedings can be protected thoroughly by defining the notion of victim in the criminal code.
The abuse of complaints should be eradicated by amending Article 223 and Article 225, thus disabling the complainant in Article 225 (indirect complainant) to make a complain without the explicit expression of the complaint in Article 223 (direct complainant).

참고자료

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