헌법재판소 판례로 본 행형과 수용자의 인권- 행형에 대한 헌법적 이해 -

초록

Although a few outstanding decisions of The Constitutional Court of Korea(KCC) have steered the penological reform, still remains much vagueness in the arguments on constitutionality of prison regulations in the penological cases. This article critically analyzes the constitutional discourses of KCC about penological aims and the restraints of prisoners' constitutional rights. In the constitutional context, the prison regulations which impinge on inmates' constitutional rights should be reasonably related to the legitimate penological aims and should be no greater than is necessary to the protection of penological aims. However, The KCC has failed to show what the legitimate penological aims are. And this vagueness has made the arguments of the KCC less elaborate in the test of “reasonable connection". This article tries to clarify the relationship between the substantial penological interests of rehabilitation, security, social defense. From constitutional “Social-State" principle, it can be construed that the rehabilitation should attain superiority over the other penological interests. And rehabilitation should be understood as a process which furnishes the prisoners with an opportunity for life without criminal conducts. It never means that the government can force a person to be a ‘good citizen'. In the test of constitutionality of the restraints of prisoners' rights it should be considered that the protections of the human rights of prisoners in general help the governmental penological aim ‘rehabilitation'. So the test of the KCC must include the following relevant factors : (1) whether and the extent to which the issued constitutional right can help the prisoners' rehabilitation, and whether and the extent to which the restraints of the constitutional rights can protect the other penological interests, (2) whether there are alternative means of exercising the asserted constitutional rights.

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