With a recent increasing interest in victims of crime, strong arguments have been made for diverse measures to protect victims and expanded roles of victims in criminal cases. Changes have been made to victim-related policies including the introductio ...
With a recent increasing interest in victims of crime, strong arguments have been made for diverse measures to protect victims and expanded roles of victims in criminal cases. Changes have been made to victim-related policies including the introduction of various rights(e.g. the victim notification system, victim's right to statement in court, and victim's right to reading and printing), enactment and revision of a salvation act for crime victims, and plans to protect victims of sexual assault through the revisions of criminal litigation acts. However, there have been no big changes to the Compensation Order System, which is considered as the vanguard of victim-related policies, in its basic framework since its introduction in 1981 in spite of several revisions. This is why the system has not been put to proper use despite its positive aspects such as victim redress, litigation economy, improved investigation efficiency, and realization of restorative justice ideology. This study thus set out to examine the problems with the Compensation Order System and propose activation plans as solutions in order to search for ways to vitalize the system.
To devise a plan to improve the Compensation Order System, this study particularly examined the legislative examples of other countries including the Compensation Order System of the United Kingdom, the Restitution of the United States, the Adhäsionsverfahren of Germany, and the rights of private participation of Austria. The current system of compensation order can be mainly divided into fundamental problems and institutional ones. As for fundamental problems, how to view the nature of the system is a problem in that it does not correspond with the modern litigation act system due to its momentary compensation through a crimonal procedure. This study argued that Article 25 of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings should be understand the compensation order as a special criminal procedure, not a summary civil procedure. Major institutional problems include the restriction to certain crimes, too narrow scope of compensation for damages, and broad limitation regulations to escape a compensation order. In this paper the author made the ideological foundation of compensation order clear to propose plans for its activation and suggested institutional improvement measures for compensation order by official authority, application by a party, and agreement between the parties.
Improvement plan for the system by official authority were proposed as follows: first, the reasons a compensation order can not be given should be revised in Article, Clause 3 of the Act on Special Cases concerning Expedition, etc. of Legal Proceedings; second, a regulation should be introduced to make the defendant's property report mandatory; third, a regulation should be introduced to make a compensation order by official authority mandatary; and finally, a compensation order preceding a monetary penalty should be realized. Improvement plan for the system by application by party were proposed as follows: the scope of target crimes should be expanded; and criteria should be set for expansion of scope and amount of compensation for damages. Finally, improvement plans for the system by agreement between the parties include introduction of a victim counsel system.