노령인구의 증가와 함께 노인범죄가 급증하고 있어 노인범죄대책이 절실히 필요하다. 그러나 여러 분야에서 각기 다른 연령기준으로 노인을 정의하고 있어서 노인범죄의 개념 자체가 명확하지 않다. 사회변화에 따른 합리적인 노인범죄의 기준연령에 대해 생각해보고 범죄노인의 적정한 처벌을 위하여 노인형사책임능력의 연령별 세분화를 시도하였다.
노인범죄의 실태를 파악함으로써 알 수 있는 사실은 ① 노인범죄율이 증가하고 있다는 것과 ② 범죄노인연령을 61세 또는 65세 이상으로 보았을 때 강력범죄와 재산범죄의 발생률이 일반 성인범죄 발생률과 다름없이 높기 때문에 61세 또는 65세 이상의 모든 범죄노인을 노인범죄에 포함시킬 필요가 없다는 것, ③ 71세 이상의 노인범죄 통계를 보면 과거 61세 또는 65세 이상의 노인범죄통계와 유사하므로 노인범죄연령을 71세 이상으로 보는 것이 타당하다는 것이다. 범죄노인의 책임능력에 따른 형사처벌의 차별화를 꾀하기 위해서는 범죄노인연령을 상향 조정해야 하고 연령기준도 소년연령기준과 같이 세분하여 처벌대상으로서의 범죄노인, 보호대상으로서의 우범․촉법노인, 책임무능력자로서의 노인으로 구분해야 한다.
또한 노인범죄의 육체적ㆍ심리적ㆍ경제적ㆍ사회적 특성을 고려하여 형사책임의 차별화와 함께 노인복지대책을 마련한다면 노인범죄예방 및 방지에 효과적인 대책이 될 수 있을 것이다. 특히 재산범죄율이 높은 점을 감안하여 노인들의 자립을 도울 수 있는 사전적 복지대책을 효율적으로 제도화하고 운용하여야 한다. 사후적으로는 노인의 특성을 고려한 시설 내 처우와 사회 내 처우를 실시하자는 것이다. 예컨대 범죄노인에게 형사제재의 일환으로 공공근로를 실시하는 것도 구금대체처분이 될 수 있을 것이다. 나아가 ① 정부 내 노인전담기구와 ② 노년원을 설치하는 것이 노인범죄대책으로써 효과적인 대응 방안이라고 본다.
The term “elderly criminal” refers to an elderly person who committed a crime, and it is important to set a standard to determine at what age or older a person should be considered to be an elderly person to be qualified under the definition of “elderly criminals”. However, it seems to be unreasonable to simply apply the same age standards that are used in other fields (such as, retirement age, age at which a person is entitled to receive the national pension fund, etc.) to categorize elderly criminals since there are other variants and factors considered in the other fields that are not applicable to defining the “elderly criminals”. It is also because the lawmakers should consider the legislative purposes of the criminal law to penalize the elderly criminals and help the government to formulate and implement crime-prevention policies against crimes committed by them.
While juveniles are considered to be legally incapable of committing a crime thus are subject to special treatment when they are penalized for crimes they commit, the elderly criminals are treated equally as ordinary adult criminals except that they are merely categorized in a different age group for statistical purposes to establish criminal policies. Such non-discrimination approach is problematic because it fails to take into account the natural effects of being old, such as physiological degradation, psychological changes and deterioration of their social status, on the elderly’s ability to commit a crime, even if it could be downgraded to the extent that it is equal to juveniles. This study was conducted to look into the punishments for elderly criminals and to take a pathbreaking approach to differentiate them from ordinary criminals by subdividing them into specific age groups and subjecting each age group to different sanctions.
It is true that as our life span has increased and aging has slowed down, there is a high likelihood that the society would face a greater number of potential elderly criminals under the traditional age standard of “over the age of 61”. As such, considering the changes in characteristics of the elderly nowadays, it is necessary to increase the age standard to “over the age of 71” to discriminate and treat differently the elderly who fall into such age group having no or less capability of committing a crime than other ordinary adult criminals. Moreover, like juveniles, it should be further considered to subdivide the elderly criminals into “the elderly subject to punishment”, “the elderly subject to protection” and “the elderly with no ability to commit a crime” and find ways to treat each group appropriately under criminal procedures.
Furthermore, it is necessary to subdivide the elderly criminals into more specific age groups referring to the age standard applied to juveniles. Since differences in the ability to commit a crime (i.e., ability to be criminal responsible or to be punished) depending on ages clearly exist, such crime-committing ability of the elderly criminals should be determined based on different age groups. For example, assuming that a juvenile at the age of 10 and an elderly person over the age of 85 have the same ability to commit a crime, the elderly criminals over the age of 85 can be treated as persons with no such ability and be accommodated at nursing homes, instead of being incarcerated. Likewise, assuming that a juvenile at the age of 14 and an elderly person of age between 81 and 85 have the same ability to commit a crime, the elderly criminals at the age of 81 or older should be treated similarly to delinquent juveniles under the age of 14. Also, assuming that a juvenile at the age of 19 and an elderly person of age between 75 and 80 have the same ability to commit a crime, treating the elderly criminals of age between 75 and 80 similarly to juvenile criminals would be desirable. In sum, the age of 71 can be the age standard applicable to define “elderly criminals”, and they can be subdivided into different age groups, i.e. under the age of 75, of age between 75 and 80, and over the age of 81, for the punishment purposes.
As part of the age categorization, it would be desirable to establish prisons for the elderly criminal to accommodate them. In 2006, the government once had a plan to build a prison for the elderly criminals at Kyungjoo Penitentiary to accommodate elderly criminals who are over the age of 65, but it has not implemented it to date. The establishment of the prison for the elderly criminals would not only impose appropriate punishment on the criminals but would also eventually reduce the number of repeated offenders by enhancing the effectiveness in rectification and reformation of the elderly prisoners.
Some scholars have suggested utilizing the “system for gathering elderly prisoners”, which is currently enforced in Japan, as a pre-step to the establishment of the prisons for elderly criminals. This system requires each local correctional facility to designate one building at a specific prison to place the elderly criminals together and effectively implement appropriate correctional programs for them. While establishing a prison for elderly criminals as promptly as possible is necessary to enhance the effectiveness in rectification and reformation of the elderly prisoners, the system for gathering elderly prisoners could be a desirable intermediate step toward the establishment of such prison for elderly criminals.
