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논문 기본 정보

자료유형
학술저널
저자정보
박상식 (경상대학교)
저널정보
경상대학교 법학연구소 법학연구 법학연구 제26권 제4호
발행연도
2018.1
수록면
1 - 24 (24page)

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초록· 키워드

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The criminal reconciliation has already existed from ancient society. There was a unification phenomenon of criminal law and civil law which commonly existed in conventional norm of ancient society and one of such contents was expressed as the weregild. Reappearance of criminal reconciliation seems to be metempsychosis of history, but relevant ideology became completely different already. Modern criminal reconciliation system was realized in promotion of modernization process. The progress of criminology, the reform of prison, and the development of liberalism brought about the reappearance of criminal reconciliation system. Criminal reconciliation system has developed rapidly in all the countries of the world, and this could not separate safety demands of society from the safety demands of people. Criminal reconciliation system was necessary to maintain and develop the surveillance society and at the same time, the nation was able to control society more effectively through the 'personal reconciliation' norm. Actually, revival of criminal reconciliation can be seen as a new era through development of punishment, not as the metempsychosis of history. The philosophical basis of criminal reconciliation is commonly found in humanitarian; the substantive legal basis is in the historical development of criminal policy; the procedural basis is in the agreement between the parties; the criminal basis is in the proliferation of the victim movement; and, the social basis is usually found in the participation and democratic spirit. Restorative justice has been discussed in China since early 2000 and at that time, the most highlighted issue in the Chinese criminal law area was the very criminal reconciliation. And, the Chinese Criminal Procedure Act (Articles 277 - 279) was revised in 2012 and if the criminal suspects or the accused sincerely repent their crime and reconcile with the victim, the investigating authority may demand non-prosecution or may ask the court for leniency, and the court can follow this request. Since the revision of the Chinese Criminal Procedure Act, non-prosecution of prosecutor or court's decision to exempt criminal punishment through criminal reconciliation is increasing in China.

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