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송창성, "형의 집행 및 수용자의 처우에 관한 법률 제82조 위헌확인", 결정해설집 14집, , 2016, p.749
[결정해설 (결정해설집14집)]
Main text

+Consuming the unconstitutionality of Article 82 of the Administration and Treatment of Correctional Institution Inmates Act

- Cases concerning the prohibition of taking prisoners dead at trial –

Constitutional Court Decision 2013Hun-Ma712 on December 23, 2015, Supreme Court Decision 27-2Ha, 670

Song Sung-sung*1)

[Main Issues]

1. Whether Article 88 of the Administration and Treatment of Correctional Institution Inmates Act (hereinafter “the Administration and Treatment of Correctional Institution Inmates Act”) does not apply mutatis mutandis to convicted prisoners present at the meeting of the criminal defendant in a criminal trial under Article 82 of the Administration and Treatment of Correctional Institution Inmates Act (hereinafter “the Administration and Treatment of Correctional Institution Inmates Act”) violates the right to fair trial, the right to pursue happiness, and the right

2. Whether Article 88 of the Criminal Execution Act does not apply mutatis mutandis to convicted prisoners attending as parties to a civil trial, whether the application of Article 82 of the Criminal Execution Act which permits the confinement of their clothes violates the right to fair trial, personal rights, and the right to pursue happiness (negative);

【Object of Adjudication】

The subject of the instant judgment is whether Article 88 of the Execution Act (amended by Act No. 9136, Dec. 11, 2008) (hereinafter “the subject of the instant judgment”) infringes on the basic rights of the claimant.

Administration and Treatment of Correctional Institution Inmates Act (Amended by Act No. 9136, Dec. 11, 2008)

Articles 84 and 85 shall apply mutatis mutandis to convicted prisoners who are under investigation or trial for a criminal case and prisoners on death row with fixed penalty.

【Summary of Case】

1. Circumstances leading to the request for adjudication;

On September 12, 2013, the claimant was prosecuted on charges of false accusation, etc. and was finally convicted of three years of imprisonment on September 12, 2013 (Supreme Court Decision 2013Do6114). The claimant, at the time of confinement in the ○○ Detention House, had his/her own criminal trial (U.S. District Court Decision 2012Da6266, etc.) and civil trial (Seoul East District Court Decision 2012Da32165). In relation to the separate criminal trial (Seoul East District Court Decision 2012Da32165) of which the plaintiff was the defendant, he/she was not allowed to wear clothes pursuant to Article 82 of the Criminal Execution Act until the judgment of the above Supreme Court becomes final, but his/

Accordingly, on October 21, 2013, the claimant filed a petition for adjudication on constitutional complaint in this case seeking to confirm the unconstitutionality of the above provision and to confirm the unconstitutionality of the refusal of the above withdrawal of death.

2. The claimant's assertion;

The provision of adjudication violates the principle of presumption of innocence by denying the use of a convicted prisoner’s clothes in a criminal case, and violates the right to receive a fair trial by making the petitioner feel insulting and humiliation in a criminal trial as a convicted prisoner or in the court in a civil trial as a party to a civil trial, thereby infringing on the right to receive a fair trial by preventing the convicted prisoner from exercising his/her right to defense, etc. Furthermore, the full restriction of the use of the clothes when the convicted prisoner is under criminal trial or is present in a civil trial is a discrimination between the unconvicted prisoner and the unconvicted prisoner, and thus infringing on the right to equality of the petitioner.

【Summary of Order】

1. Inasmuch as a convicted prisoner is in the same position as an unconvicted prisoner in a separate criminal trial, it is prohibited from taking such a convicted prisoner out without any exception at the time of his/her appearance in the criminal trial, and allowing such a convicted prisoner to undergo a trial in the sense of personal insult and sense of shame in his/her appearance in the criminal trial, it is possible for the person concerned with the lawsuit, such as the full bench or the prosecutor, to have him/her be convicted of him/her, and such person

In addition, it is difficult to deem that a separate safe guard problem arises that is distinct from ordinary unconvicted prisoners by allowing the use of clothes of convicted prisoners present at a criminal trial as a defendant. Therefore, it is difficult to view that a provision subject to adjudication does not allow the use of clothes to convicted prisoners present at a criminal trial as a defendant violates the right of a petitioner to a fair trial, personal rights, and the right to pursue happiness.

2. In a civil trial, a judge does not have any unfavorable conviction or unfair proceeding according to the party’s uniforms. Thus, the right to a fair trial is not infringed on by denying the application of a provision to a convicted person present as a party to a civil trial, because the provision to a trial does not violate the right to a fair trial.

Since a correctional officer must accompany a prisoner until he/she attends a civil court, it is limited to the extent that his/her personality rights and the right to pursue happiness are restricted due to his/her awareness of the status as a prisoner, and the personal rights and the right to pursue happiness are restricted due to his/her occurrence of clothing. The method of entry other than criminal law is different from that of a criminal court in which an unconvicted prisoner and a correctional officer exclusively uses a correctional officer and facilities exist, and the method and degree of safe guard are clearly different. Therefore, it does not infringe upon the applicant’s personality rights and the right to pursue happiness.

Dissenting Opinion by Justice Lee Jong-chul, Justice Lee Jin-sung, and Justice Kang Il-won, Justice Lee Jong-won, who is a party to a civil trial and is not allowed to take clothes against convicted prisoners present at the civil trial

It is doubtful whether compelling the wearing of a prisoner's clothes in the trial process has any effect to the extent that it serves the purpose of preventing escape. If the escape in the course of transfer is a problem, it is possible to allow the delivery to enter the clothing for the prisoner during the transfer and to wear the clothes only in the court, and it is possible for other means to less limit fundamental rights such as exceptionally restricting the wearing of clothes only when there is a significant concern about the risk of escape or in particular when there is an improper reason. The wearing of the clothes for the prisoner is likely to cause a negative increase to the litigants, or it does not vary depending on whether it is a criminal trial or a civil trial. Accordingly, the provision subject to adjudication does not change depending on whether it is a criminal trial or a civil trial to put the prisoner under a sense of sense of shame, insult, and to cause a

It is in violation of the Constitution that it is against the right to personality and the right to pursue happiness of the appellant who appears as a party to a civil trial without exception.

【Relocation】

1. The issues of the case

In the case of this case, it is a question whether the person who filed a request for a trial should be considered as Article 82 of the Act on the Execution of Punishment and Punishment and the Act on the Execution of Punishment and the Act on the Execution of Punishment and the Act on the Execution of Punishment and the Act on the Execution of Punishment and the Act on the Execution of Punishment and the Act on the Execution of Punishment and the Act on the Execution of Punishment and the Act on the Punishment and the Act

Next, in the decision on the merits, since Article 82 of the Criminal Procedure Act does not apply mutatis mutandis to the provisions of the case to which the accused or the party of the civil trial is present in the criminal trial, the appellant shall attend the public trial by suffering the clothing for the prisoner and making it open to the public. It is a question whether the petitioner's right to fair trial, personality right and the right to pursue happiness is infringed.

On the other hand, the appellant asserts that the provision of the object to be tried should be arbitrarily discriminated against the appellant when the unconvicted is present at the trial, but this provision is in the nature that can be discussed together in determining whether the provision violates the principle of excessive prohibition as to the right to fair trial. Therefore, the above argument is not separately determined.

In the below, the review of the confirmation of the object to be tried, and the history and legislation of the provision to be tried, and the decision on the merits is followed.

2. Determination of subject matters of adjudication;

(a) Whether the subject matter of adjudication is changed;

Justices agreed upon the assent of all participating Justices changed the object of the adjudication into Article 82 of the Criminal Execution Act and Article 88 of the Criminal Execution Act.

'⌈청구인은 주위적으로 형집행법 제82조의 위헌확인을 구하나, 수형자인

청구인이 형사재판의 피고인과 민사재판의 당사자로 법정에 출석할 때 사복착용이 불허된 것은 형집행법 제88조가 위와 같은 경우에 형집행법 제82조를 준용하지 아니한 것에 기인하므로, 이 사건 심판대상을 형집행법(2008. 12. 11. 법률 제9136호로 개정된 것) 제88조가 청구인의 기본권을 침해하는지 여부로 변경한다.'⌈

In this case, the head of ○○ detention center in this case rejected the application of the punishment for unconvicted prisoners at the time of the applicant’s appearance in the court based on Article 82 of the Execution of Punishment Act, and the applicant is dissatisfied with the prohibition of the confinement of unconvicted prisoners at the time of their attendance in the civil trial. This may not be relevant to Article 88 of the Execution of Punishment Act (Article 88). In accordance with the decision of the Constitutional Court, it can be argued that it is unnecessary for the Constitutional Court to change or expand the subject of the judgment in that it is the legislator’s share. However, Article 82 of the Execution of Punishment Act (Articles 79 through 88) provides that Article 88 of the Execution of Punishment Act shall apply mutatis mutandis to the treatment of unconvicted prisoners under investigation or trial as a criminal case, and that Article 88 of the Enforcement of Punishment Act shall apply mutatis mutandis to the case of unconvicted prisoners and the case of unconvicted prisoners under the Article 84 and Article 85 of the Enforcement of Punishment Act, which shall apply mutatis mutandis to other provisions concerning the treatment of unconvicted Prisoners.

B. Whether an enforcement action based on the law is judged

In this case, the claimant sought to confirm the unconstitutionality of the provision of the law around the case, and to confirm the unconstitutionality of the enforcement act based on the provision of the law in the preliminary. The Justices, with the assent of all Justices, excluded the enforcement act from the object of the adjudication as follows.

'⌈청구인이 예비적으로 위헌확인을 구하는 ○○구치소장이 2013. 10. 22., 2013. 11. 6., 2013. 12. 4., 2013. 12. 18. 형사재판 또는 민사재판에 출석하는 청구인의 사복착용을 각 불허한 행위는 형집행법 제88조에 따라 재량의

여지없이 이루어지는 집행행위이고, 그 근거가 된 법률조항을 심판대상으로 판단하므로, 위 각 행위에 대해서는 별도로 판단할 필요가 없어 이를 심판대상에서 제외한다(헌재 2014. 8. 28. 2011헌마28 등 참조).'⌈

The purpose of this case is to confirm the unconstitutionality of Article 2(1) of the Addenda to the Act on the Use and Protection of DNA Identification Information (amended by Presidential Decree No. 201058, Aug. 28, 2014; Presidential Decree No. 26-2, 337, 352); Presidential Decree No. 201488, Aug. 29, 2013; Presidential Decree No. 20154, Nov. 29, 2013; Presidential Decree No. 20148, Nov. 22, 2013; Presidential Decree No. 20135, Feb. 29, 2013; Presidential Decree No. 25207, Feb. 29, 2013; Presidential Decree No. 2494, Apr. 4, 2014).

On the other hand, the part of the decision did not have a specific decision, but there is a view that the object of the decision in this case is not a provision subject to the decision, but a result of the specific enforcement of Articles 24 through 27 of the Act on the Execution of Punishment for Prisoners’ Self-Purchase Goods and Personal Money and Valuables, etc., and its subordinate statutes. For example, Article 32 of the Enforcement Decree of the Act on the Execution of Punishment provides that a prisoner’s use of a clothes for self-purchase shall be permitted by the warden, and Article 34(2) of the Enforcement Decree of the Act on the Execution of Punishment provides that a prisoner’s use of clothes brought at the time of admission shall be permitted by the permission of the warden. In this case, according to the view that Article 34(2) of the Enforcement Decree of the Act on the Execution of Punishment for Prisoners’ Self-Support and the Act on the Enforcement of Punishment for Prisoners’ Compensation has no relation to the subject of the decision in this case, and rather, it may be judged by the execution act rather than the execution act.

3. Legislative history, relevant precedents, and legislation cases concerning the exploitation of prisoners at the time of outing;

A. Legislative history and related precedents

Article 82 of the Criminal Procedure Act permits unconvicted prisoners to wear clothes as stated in Article 82 of the same Act. Article 82 of the same Act provides that "No one shall apply mutatis mutandis to the acts of unconvicted prisoners on or after May 27, 1999, 97Hun-Ma137, etc. (case No. 11-1, 653) until the date of confirming unconstitutionality of the act of causing unconvicted prisoners to wear clothes or undergo an investigation or a trial. Since the above ruling was revised on December 28, 1999, the Criminal Act was amended on 199. In order for unconvicted prisoners to attend a trial, etc., Article 28 of the same Act provides that "No one warden shall permit the acts of unconvicted prisoners to wear clothes and shoes at the time of their attendance (Article 22(2) of the same Act)." Article 208Hun-Ma412, etc. of the Criminal Procedure Act provides that the above order of unconvicted prisoners to wear clothes prisoners at the time of trial, etc.

(b) Legislative cases concerning the use of clothes at the time of appearance of convicted prisoners;

(1) Minimum Standard Rules on the treatment of prisoners

Article 17(3) of the UN Economic and Social Council in 1955 provides that “The minimum standard rules on the treatment of prisoners” approved by the UN Economic and Social Council in 1957 shall not be legally binding, but shall be generally accepted as desirable principles and practical guidelines for the treatment of prisoners and the management of their facilities. In 1971, the UN Assembly has recommended each country to implement the above rules by accepting them in domestic legislation. Article 17(3) of the above rules provides that “When a prisoner goes out of the facilities for an exceptional purpose, it shall be allowed to wear his own clothes or house without being kept in the body” (Article 17(3) of the above rules. Since then, the revised rules in 2015 provide that “The minimum standard rules on the treatment of prisoners shall be adopted.”

(2) The European Correctional Institution Rules (the European Prison Rules)

On February 12, 1987, the Ministerial Committee of the Council of Europe accepted the recommendation of the UN General Assembly at the fourth 404 meeting, and adopted the rules of the European Correctional Institution in consideration of the reality of Europe while similar to the above minimum standard rules, and recommended the member states to use them in domestic legislation and practical guidelines for the purpose of progressive implementation of the rules. Article 22(3) of the rules of the European Correctional Institution adopted in 1987 provides that "When a prisoner obtains permission for outing from the facility, he/she shall be allowed to wear the clothes of his/her house or house that is not kept in the body at all times." Article 20.4 of the rules of the European Correctional Institution amended in 2006 provides that "When a prisoner obtains permission for outing from the facility, he/she shall not be required to be recognized as a prisoner."

(3) Japan

No special provision is provided for uniforms worn in the court in the relevant statutes, except as otherwise provided for in the case of going out and staying outside; in the case of clothes used in the case of going out and staying outside;

사수용시설 및 피수용자 등의 처우에 관한 법률(刑事収容施設及び被収容者等の処遇に関する法律)’ 제42조 제1항 제4호는 원칙적으로 외출·외박 시에 사용할 의류 기타 물품은 자비부담으로 하고, 동조 제2항은 자비부담의 물건을 사용할 수 없는 경우에는 이를 대여 또는 지급하도록 규정하고 있다. 또한 ‘형사시설 및 피수용자의 처우에 관한 규칙(刑事施設及び被収容者の処遇に関する規則)’ 제15조 제2항에서는 호송 및 외부통근 작업을 할 때 의류의 자비부담 물품의 사용을 허가할 수 있다고 한다.

(4) United States

According to the U.S. federal rules, prisoners are present at a civil trial or criminal trial or may temporarily leave the military court with the permission of the head of the correctional institution for the funeral of their families.2) Although there is no provision on uniforms when temporarily leave the military court, there is a lower court's ruling that there is no constitutional or federal right to freedom of law that the capital of a prisoner does not wear the number and the number of clothes when temporarily leave the military court (Farler v. Cres, 804 F.S. 1516, 1992).3)

(5) Germany

Where a prisoner is summoned by a court in Germany, the warden of the prison shall permit an outing or leave (Article 36(1) of the German Criminal Administration Act (StvolzG) ii) to leave outside the prison (Article 36(2) of the German Criminal Administration Act) ii) to wear his/her clothes if it is determined that there is no risk of escape (Article 20(2) of the German Criminal Administration Act). The case holding that the right to wear the prisoner's clothes at the time of the outing out the prison is not anticipated to escape, or that it is recognized at the discretion of the head of the facility, on the grounds that the right to wear the prisoner's clothes at the time of leaving the court is recognized at the discretion of the head of the facility, and that it conforms with the constitutional request to consider the general personality rights of the prisoner by having the prisoner appear in the court as a uniform that the prisoner feel fit at the time of such discretion decision).

4. Whether or not any provision subject to adjudication is unconstitutional;

A. Whether a convicted prisoner present at a criminal trial violates his/her fundamental right to refuse the taking of personal clothes

(1) Judgment of the Constitutional Court

The Constitutional Court ruled by unanimous opinion of all Justices that the prohibition of the application of the provision to the convicted prisoners present as the accused in a criminal trial violates the excessive prohibition principle, thereby infringing the petitioner's right to fair trial, personality right, and the right to pursue happiness. The summary of the reasons is as follows.

'⌈(가) 목적의 정당성 및 수단의 적합성

It is difficult to restrain or arrest a prisoner's appearance when the prisoner is present at the court due to his/her clothes, and it is difficult to keep him/her from committing an actual escape, because it is difficult to distinguish him/her from the general public.In cases where the prisoner is present at the court of criminal trial, taking clothes for the prisoner is necessary to prevent such escape and prevent correctional accidents, and therefore, the legitimacy of the purpose and the suitability of the means is recognized.

(b) The minimum extent of infringement;

Article 27(4) of the Constitution provides for the principle of presumption of innocence, taking into account the unfavorable status of a defendant in a criminal trial, the State’s penal power is the strong and strong, and entails harsh force on the person subject to punishment. A criminal trial is a procedure aimed at appropriately realizing the penal power, and there is an essential difference between the purpose and means of civil litigation and other litigation procedures (such as civil litigation) with the aim of resolving civil disputes between equal parties (see, e.g., Constitutional Court Decision 2010Hun-Ba450, Feb. 28, 2013). In such criminal trial, considering the unfavorable status of the defendant, our Constitution has special protection in relation to the exercise of the defendant’s right to defense, and Article 27(4) of the Constitution declares the principle of presumption of innocence. This is from the constitutional ideology that, at all times, protects the status of the defendant who is likely to be exposed

That is, (see Constitutional Court Decision 91Hun-Ma11, Jan. 28, 1992; Constitutional Court Decision 2010Hun-Ma418, Sept. 2, 2010).

Although a convicted prisoner is in the same position as an unconvicted prisoner in a separate criminal trial, it does not give any tangible or intangible disadvantage by treating him/her as equivalent to the convicted prisoner in a separate criminal trial. However, it is highly likely to violate the principle of presumption of innocence by preventing such convicted prisoner from taking clothes without any exception at the time of his/her appearance in a criminal trial and allowing him/her to undergo a trial in a sense of personal insult and shame in a sense of shame.

On the other hand, the presumption of innocence is based on the principle, and the judgment of detention is allowed only when the defendant is likely to flee or destroy evidence exceptionally. In other words, the detained defendant, namely, the unconvicted prisoner, is placed in an unstable state, such as apprehension, fear, and fear, and suffers a lot of disadvantages, such as loss of import, suppression of social activities, and fall of honor. In the case of the convicted prisoner present in a criminal trial, regardless of the existence of grounds for detention, a separate criminal trial becomes final and conclusive, the convicted prisoner is placed in an inferior status than the above unconvicted prisoner. Therefore, allowing the convicted prisoner to wear clothes differently from the unconvicted prisoner in a separate criminal trial is likely to seriously obstruct the discovery of substantial truth because it is likely that the convicted prisoner’s right of defense may be restricted by having the criminal defendant who has already been severely reduced due to his status of the convicted prisoner undergo a criminal trial under the influence of his/her personal insult and shame, and thus, it is excessively limited to the right to receive a fair trial, right to personality right, and right to pursue happiness.

In the case of convicted prisoners, the restriction on fundamental rights should be limited to certain fundamental rights, such as physical freedom and movement of residence, relating to the purpose of detention, such as the execution of punishment and the prevention of escape, and such restriction also does not deviate from the necessary scope (see, e.g., Supreme Court Decision 2002Hun-Ma478, Dec. 16, 2004). A convicted prisoner may have free interviews and correspondence with defense counsel in relation to a criminal case that is not brought against a person subject to disciplinary action. It is possible to prepare litigation documents, interview and correspondence with defense counsel, and exercise rights in the course of investigation and trial (see, e.g., Articles 88, 84, and 85 of the Criminal Execution Act).

As such, the same position as an unconvicted prisoner is limited to the situation in which an unconvicted prisoner attends a criminal trial, allowing him/her to wear his/her clothes like an unconvicted prisoner, unless it is inevitable to prevent escape and correctional accidents, is the length of ensuring that the same as the party’s equalism and the right to a fair trial are more faithfully guaranteed in criminal proceedings.

However, after the Constitutional Court confirmed on May 27, 199 that the prohibition of unconvicted prisoners from taking clothes at the trial of unconvicted prisoners was unconstitutional (Article 97Hun-Ma137, etc.), the unconvicted prisoners were able to wear clothes at the time of attending a criminal trial (Article 82 of the Criminal Execution Act), and it is difficult to see that a separate safe guard problem is distinct from ordinary unconvicted prisoners by allowing the additional clothes of unconvicted prisoners present at the criminal trial. Even if the burden of unconvicted prisoners on unconvicted prisoners increases due to the permission of taking clothes, other means such as allowing them to take clothes at the request of unconvicted prisoners to go in the criminal trial during the movement, are sufficiently possible.

Furthermore, as the proviso of Article 82 of the Criminal Procedure Act, if there is a significant concern about escape or if there is an improper reason, it would reduce the risk of escape and correctional accidents by restricting the use of the clothes. Therefore, it would be against the minimum principle of infringement to prohibit uniform flight without any exception when the guarantee of the defendant's right to defense, such as a criminal trial, is urgent.

(C) Balance of the legal interests;

In addition to the public interest of preventing escape prevention and correctional accidents through the provision of the object to be tried, the personal insult and shameing of prisoners are very significant by wearing a clothes for prisoners in a poor status, and through this, the right of defense can not be exercised properly and the risk of undermining the principle of equality of legal interests is also in violation of the principle of balance of legal interests.

(D) Sub-determination

따라서 심판대상조항이 형사재판의 피고인으로 출석하는 수형자에 대하여 형집행법 제82조를 준용하지 아니한 것은 과잉금지원칙에 위반되어 청구인의 공정한 재판을 받을 권리, 인격권, 행복추구권을 침해한다.'⌈

(2) The snow.

As above, the following criticism may be made on the judgment of the Constitutional Court. The entry of a prisoner in custody in a party to a criminal trial is not a disadvantage due to the conviction in the relevant criminal trial, but a separate criminal trial. Thus, the presumption of innocence in the relevant criminal trial is not an area to which the principle of presumption of innocence applies, and it is not an area to which the principle of presumption of innocence is applied, and it cannot be said that a judge has an unfavorable conviction or has an unfair trial proceeding solely on the ground that he/she suffers a prisoner's consciousness, not a clothes, but a judge suffers from a criminal trial, and even if a defendant has a sense of insult and sense of shame due to his/her appearance in a criminal trial, it is possible to argue that it is only an issue related to the indirect disadvantage of the defendant's exercise of his/her right of defense

However, the Constitutional Court emphasized that even though it is a convicted prisoner, it is in the same position as that of an unconvicted prisoner in a separate criminal trial that is not finalized even if it is the convicted prisoner. The Court held that the provision of the case subject to adjudication is in violation of the principle of presumption of innocence, such as prohibiting the convicted prisoner from taking clothes without any exception when attending a criminal trial and allowing him/her to take a trial in a sense of personal insult and sense of shame by allowing him/her to take clothes in a criminal trial without any exception, and it is likely that it would be in violation of the principle of presumption of innocence, such as allowing him/her to check his/her conviction against the person involved in the criminal trial such as a full bench or a prosecutor, and it is more likely that there is a problem of safe custody distinct from an ordinary unconvicted prisoner by allowing him/her to take clothes of the convicted prisoner present in a criminal trial. Furthermore, it is difficult to see that the provision of the case subject to adjudication is a violation of the principle of prohibition of excessive use and infringing on the right of the petitioner and the right to pursue happiness.

B. Whether a convicted prisoner present as a party in a civil trial violates the fundamental right of non-permission for the exploitation of clothes

(1) As to whether a provision subject to adjudication infringes on the fundamental rights of convicted prisoners who appear as a party to a civil trial (hereinafter referred to as “non-permission of taking away at the time of attendance of a civil trial under the provision subject to adjudication”), a Justice’s opinion was divided. The constitutional theory of the majority opinion and the dissenting opinion, which are the constitutional theory of the majority opinion, are as follows.

(2) Constitutionality theory

The majority opinion held that the non-permission on the non-permission of the commencement of a civil trial at the time of attendance of the civil trial of the clause subject to adjudication does not infringe on the basic rights of the claimant. First, the majority held that the non-permission of the commencement of a civil trial of the clause subject to adjudication does not infringe on the claimant'

'⌈무죄추정의 원칙이나 방어권은 원칙적으로 형사재판에서 문제되는 기본권인데, 여기서 문제되는 것은 형사재판이 아니라 청구인이 자신의 민사상 분쟁을 해결하기 위하여 당사자로 출석하는 민사재판이다.

그런데 민사재판에서 법관이 당사자의 복장, 즉 사복이 아니라 재소자용 의류를 입었다는 이유로 불리한 심증을 갖거나 불공정한 재판진행을 하게 될 우려가 있다고 볼 수는 없으므로, 심판대상조항이 민사재판의 당사자로 출석하는 수형자에 대하여 사복착용을 불허하는 것으로 인하여 공정한 재판을 받을 권리가 침해되는 것은 아니다.'⌈

Next, it was judged that the civil trial of the clause subject to the adjudication is in violation of the principle of excessive prohibition of non-permission for non-permission for taking place at the time of the attendance of the civil trial, and it does not infringe

'⌈심판대상조항의 민사재판 출석 시 사복착용 불허는 시설 바깥으로의 외출이라는 기회를 이용한 도주를 예방하기 위한 것으로서 그 목적이 정당하고, 사복착용의 불허는 위와 같은 목적을 달성하기 위한 적합한 수단이 된다.

However, since a correctional officer must accompany the prisoner to prevent escape and correctional accidents until the prisoner attends a civil court, the prisoner's status is revealed regardless of the type of clothes, and the prisoner's personality right and the reason that he/she suffered clothing for the prisoner.

In addition, the right to pursue happiness is limited to the extent that it is limited. In addition, if a prisoner moves outside of the confinement facility to attend the trial, the risk of escape is higher than the time of confinement in the facility. Unlike the time inside the facility, under the circumstances where the functions of detention are vulnerable due to the limitations of the accompanying correctional officer or correctional facility, arrest may lead to the will of escape, and the arrest may be relatively difficult when the escape is easy or the escape is easy. In particular, the way of entry in the court, other than the criminal law, is different from the criminal trial in which the unconvicted and the correctional officer exclusively uses the prison, and the way and degree of safe guard are clearly different from the criminal trial in which the unconvicted and the correctional officer exclusively uses the prison. Since it is not possible to use the guidance to prevent escape, it is not contrary to the principle of minimum violation of the law and the principle of balance of legal interests.

From the perspective of comparative law, according to the German and Japanese criminal administration law, whether a prisoner is to permit the use of the body when the prisoner goes out of prison is prescribed as the discretionary matter of the prison warden. In the United States, the federal rules stipulate that whether to permit temporary appearance, such as the attendance at court, is the discretionary matter of the prison warden (see Constitutional Court Decision 2009Hun-Ma209, Feb. 24, 201).

따라서 심판대상조항의 민사재판 출석 시 사복착용 불허는 과잉금지원칙에 위배되어 청구인의 인격권과 행복추구권을 침해한다고 볼 수 없다.'⌈

(3) unconstitutionality theory

In regard to such majority opinion, the Lee Jong-chul, Lee Jin-sung, and the Justice Kang Il-won presented the dissenting opinion that it violates the Constitution by infringing on the personal rights and the right to pursue happiness of a petitioner who has not taken place in a civil trial under the provision subject to a trial. The dissenting opinion argues that, unlike the case of an unconvicted prisoner, the presumption of innocence or the right to receive a fair trial is not at issue in the point that the conviction is finalized, the restriction on personal rights and the right to pursue happiness based on human dignity and value has no reason to regard differently from the case of an unconvicted prisoner. The summary of the decision is as follows.

'⌈재판 과정 자체에서 재소자용 의류의 착용을 강제하는 것이 과연 도주의 방지라는 목적 달성에 어느 정도로 효과가 있는지가 의문이다. 이송 도

If there is a problem of escape in the face of transfer, it may be possible to get a prisoner's will during the transfer, and a prisoner's will to go into the prison in order to attend the court, or go into the prison only in the court. It is possible to reduce the fundamental rights such as exceptionally restricting the use of clothes, such as restricting the use of clothes when there is a significant concern about escape or an improper reason, such as the proviso of Article 82 of the Punishment and Execution Act. This is irrelevant to the type of trial.

On the other hand, allowing a prisoner to wear clothes for prisoners out of the confinement facility against his/her will may cause a sense of insult and shame. While the principle of presumption of innocence is applied, the criminal trial has already been prosecuted by the prosecutor, recognizing the necessity of punishment, and there are many other Defendants in the criminal law. However, the civil trial is irrelevant to criminal punishment, and the civil trial is more visible if a prisoner wears clothes for prisoners in a large number of general public in the civil court, so the sense of sense of shame and the right to pursue happiness is greater than that of the civil trial. However, restricting personal rights and the right to pursue happiness is not included in the legitimate purpose of the criminal trial. Such sense of shame and insult is unlikely to obstruct the attack and defense of the convicted prisoner in the civil trial, and it is difficult to view that it is irrelevant to the infringement of the right to fair trial and the right to pursue happiness of the criminal trial. The majority opinion considers that it is irrelevant to the presumption of innocence of the accused's right to defense in the civil trial, and it does not change due to his/her appearance of clothes in the criminal trial.

Ultimately, it is difficult to view that compelling all prisoners subject to civil trials to wear clothes for prisoners is a restriction on justifiable fundamental rights to achieve the purpose of criminal administration. Such determination is more reasonable in light of Article 17(3) of the Minimum Standard Regulations on the Treatment of Prisoners under Detention (The United Nations Convention on the Prevention of Crimes and the Treatment of Offenders Meeting) providing that a prisoner in prison who is not allowed to wear clothes within the facility shall be allowed to wear unclaimed clothes for the purpose of legitimate recognition at all times out of the facility (see, e.g., Supreme Court Decision 200Do154, Apr. 1, 200).

1999. 5. 27. 97헌마137 등).'⌈

(4) The snow.

In conclusion, the majority opinion held that in a civil trial where the presumption of innocence or the right of defense is not at issue, the right to receive a fair trial cannot be deemed as being infringed on the grounds that the parties suffered the clothing of prisoners, and that the correctional officer accompanying the correctional officer to the attendance at the civil court, the degree of restriction on the right to pursue happiness and the right to pursue happiness due to clothing of prisoners is limited and that access to the court, other than the criminal law, is clearly different from that in the criminal trial, the right to receive a fair trial may not be deemed as infringing on the claimant's personality right and the right to pursue happiness when the civil trial is present at the civil trial of the article to be tried.

On the other hand, considering the fact that it is possible to less limit the fundamental rights, and that the wearing of clothes for prisoners causes negative increase to the litigants, or that a prisoner suffers difficulties in chilling in the execution of a lawsuit with a sense of shame, insult, and a sense of shameing in the execution of a lawsuit is not a criminal trial or a civil trial, it is not different depending on whether the provision subject to adjudication is a criminal trial or a civil trial. It is deemed that denying the use of clothes for prisoners present at a civil trial without any exception violates the applicant’s personality right and the right to pursue happiness.

The Constitutional Court ruled that the provision of the case in question is unconstitutional as to the rejection of the confinement of a prisoner who appears as a defendant in a criminal trial. On the contrary, the majority opinion argues that the rejection of the confinement of a prisoner who appears in the civil trial under the provision in question is constitutional in a way that emphasizes the difference between the civil trial and the criminal trial. However, in the previous legislative case, it is difficult to find any different case depending on the type of the trial and it is difficult to find that the degree of infringement of personal rights, etc. due to the clothes for prisoners differs depending on the type of trial as pointed out by the opposing opinion. However, unlike the civil trial, the criminal trial is in the same position as the unconvicted prisoner who appears in it. Accordingly, the decision in this case is unconstitutional as to the prohibition of the confinement of a prisoner who appears in the trial of the unconvicted prisoner, and the status of the unconvicted prisoner is determined in accordance with the relation between the decision in question and the decision in question.

It can be understood that the above majority opinion's decision is distinguished from the case of a civil trial that cannot be considered.

5. Definition of the decision; and

A. The decision of this case was judged differently in the case of a criminal trial as to whether the prohibition of the confinement of a convicted prisoner present at the trial infringes on the fundamental rights of the petitioner, and the case of a civil trial. First, Article 88 of the Criminal Procedure Act does not apply mutatis mutandis to a convicted prisoner present at the trial as the defendant in a criminal trial, and Article 82 of the Criminal Procedure Act does not apply mutatis mutandis to the right to fair trial of the petitioner, personality right, and the right to pursue happiness. This is significant, as long as the decision of unconstitutionality, such as the Constitutional Court Decision 97Hun-Ma137, May 27, 1999, ruled that the prohibition of the confinement of a convicted prisoner present at the trial of the unconvicted prisoner was unconstitutional as to the prohibition of the confinement of a convicted prisoner present at the trial of the unconvicted prisoner. Furthermore, in the case of the prohibition of the confinement of a convicted prisoner present

B. Next, the majority opinion held that Article 88 of the Criminal Execution Act does not apply mutatis mutandis to the case where Article 82 of the Criminal Procedure Act does not apply mutatis mutandis to a convicted prisoner present at a civil trial, and Article 82 of the same Act does not apply mutatis mutandis to the case where the right to fair trial, personality right, and the right to pursue happiness is violated. In this regard, it is meaningful in that it is clearly distinguishable from the case of a criminal trial in which the status of an unconvicted prisoner is considered. In this regard, the Constitutional Court in the past held that the act of refusing to wear a physicalization of the requester present at a civil court does not infringe the right to fair trial, the right to equality, the right to pursue happiness, and the right to pursue happiness (Hun-Ga, February 24, 2011).

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