소년법 목적조항의 “반사회성이 있는 소년” 문언에 관한 비판적 고찰

• Published in: 소년보호연구 Vol. 37; no. 2; pp. 129 - 150
• Main Authors: 정희철, Hee Cheol Jung
• Format: Journal Article
• Language: Korean
• Published: 한국소년정책학회 31.12.2024
• Subjects: Antisocial; Crime Prone Juvenile; Juvenile Act; Juvenile Crime; Purpose Provision of the Juvenile Act; 법학
• ISSN: 1598-8163; 2734-0414
• DOI: 10.35930/KJPR.37.2.6

The Juvenile Act Article 1 stipulates “Antisocial juveniles” as the superior concept of the juveniles subject to juvenile protective Disposition in Article. 4. This wording is problematic in that it is appropriate for the purpose of the Juvenile Act. From the perspective of the interpretation of the meaning of the wording or the appropriateness of the legal concept, this wording raises questions about whether the meaning of the wording itself is unclear or systematically inconsistent. Although the ideology of juvenile protection is the guiding ideology of the Juvenile Act, the ideology of juvenile protection is not achieved solely by the Juvenile Act, which is part of the criminal law domain. Among the entire legal domains that can achieve the ideology of juvenile protection, the Juvenile Act is responsible for only a partial domain, and the Juvenile Act, which is a special criminal law, is only the final means of achieving the purpose pursued by the ideology of juvenile protection, and cannot be the sole means (sola ratio) or the first means (prima ratio). Under the pretext of juvenile protection, the criminal justice agency should not intervene in all possible areas through its intervention. The areas of welfare and treatment should be transferred to the protection and welfare-related legislation, and the areas that support or replace the role of parental care should be transferred to the civil law domain. The phrase “antisocial juveniles” does not fit the purpose clause of the Juvenile Act, which is responsible for a part of the realization of the idea of juvenile protection. According to the current understanding of language, antisocial means antisocial personality disorder. Juvenile delinquents, juvenile offenders, and crime prone juveniles are not antisocial juveniles. Therefore, antisocial juveniles are not suitable as a superordinate concept encompassing the juveniles subject to the Juvenile Act. The phrase “antisocial juveniles” should be revised to a value-neutral, clear phrase that eliminates ambiguity and uncertainty so that anyone can understand its meaning. I believe that the elimination of such uncertainty could also lead to the abolition of the crime prone juvenile regulation.