본문 바로가기
  • Home
Basic Search

An Analysis of the Current Situation of Criminal Mediation System and Effectiveness

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2014, 2(2), pp.211-278
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

주재웅 1

1호서대학교 법학연구소

ABSTRACT

To overcome a lot of problem coming from the punitive criminal justice in the past, criminal adjustment began to rise as a part of the justice recovery program for the criminal victim. Enforcement test of 2006, it is expanded across the board of the crime victim assistance center of the prosecutor office since August 30. 2007. Currently, the adjustment of the criminal case is being carried out in the nationwide including 58 branches of district prosecutor office. In Korea, our criminal law system defines crime as acts against the State rather than as acts against individuals or communities at large. In these definitional parameters, we often overlook the unmet needs of victims and society after a crime is committed. In our current system, we are preoccupied with retribution instead of restoring the victims and healing the harm done. From here stems the goals of restorative justice: an alternative to the typical criminal justice process. Restorative justice is concerned with healing the wounded victim: financially, emotionally, and socially. It expects offenders to rectify the harms they have inflicted, but then seeks to reintegrate both parties back into society as contributing, law-abiding citizens. Restorative justice seeks to keep those most effected by the crime directly involved with the process of responding to it. It is about looking to the root of crime in its social context, and trying to break the cycle. The process empowers victims, allows offenders to repent and heal, and restores relationships within the community. In recent years, there has been an expansion of alternative dispute resolution into various fields of law, and criminal law is a prime example. As the goals of restorative justice become increasingly popular, and alternatives to the courtroom become more versatile, mediation has become a provocative option for criminal defendants and prosecutors alike. The oldest and most widely used expression of restorative justice is victim-offender mediation, where the victim and offender come to an out-of-court agreement with the help of a mediator. This dissertation will explore the benefits of victim-offender mediation in criminal law and address concerns voiced about it, explore ways in which it is currently being practiced in this country and internationally, and last it will set forth a design for a criminal mediation program which would specifically deal with one jurisdictional branch of district prosecutor's office based criminal mediation board. Victim-offender mediation is somewhat different than traditional mediation. In both, the process starts when the two parties come together with a neutral third person to resolve a dispute and reach a settlement. Whereas in a regular mediation, there is an assumption that both sides contributed to the conflict at hand, in victim-offender mediation there is an innocent victim and an offender who has usually already admitted to the crime. This puts the parties at different positions when negotiations begin. However, this is not a problem because the focus is not on reaching a fair negotiated settlement, but instead on communication, confrontation, accountability, healing, and restoration. Despite the advantages it offers, there have been critics that have voiced several areas of concern with the program. However, studies have shown that victim-offender mediation is successful, improving lives, and changing the way society looks at criminal justice one case at a time. The arrangements of neutral coordinator, through the face-to-face interaction between crime victims and criminal offenders, takes recovery measures of damage caused by crime directly to the victim and foin offenders liability to the crime, and can adjust damages of the victims. As a result, state may provide a vaporization that perpetrator can be avoided the stigma in society, the proper satisfaction may awarded to the victim. The main criminal adjustment start by filing an application for a suspect or victim of crime inspection. The personal civil disputes, such as medical malpractice and defamation complaint and incident of property crime, such as fraud, embezzlement, breach of trust by its own authority are strong criminal mediation case. The mediation process offers parties direct control over the outcome of their dispute. Often in criminal processes there are huge concerns at stake: incarceration for defendants and the vindication of rights for victims. Leaving the decision power in the hands of a distant third party judge creates a lot of apprehension in the parties. Mediation relieves some of this tension, giving parties a sense of power in the process. Being given the ability to navigate a stressful criminal process empowers both sides. Final resolution of the case and substantial damage conservation of crime victims is also subject to this system. It can be seen as a critical strategy that can be a restorative justice program that is fully implemented new crime of the 21st century in Korea. There are numerous psychological benefits for victims who have a chance to confront their offender that do not exist in a criminal trial. The belief that severe punishment imposed on an offender will bring about some kind of peace of mind for the victim is unfounded. Revenge does not restore the losses of victims, answer questions, relieve fears, provide closure, or help to make sense of a tragedy. Further, being able to forgive someone who has caused harm provides a sense of healing to the victims of crimes. One way to meet these needs is confrontation with the offender, and this is the type of justice which victim-offender mediation can facilitate. It is incorrect to assume that the psychological benefit is limited to the victims in the mediation. Offenders are also given the opportunity to truly face the situation and make it right. Retaining a degree of control enables offenders to take responsibility of their action in a unique way, and this in turn purges them of the guilt and label associated with their crime. Receiving true forgiveness for a criminal act is one aspect of victim-offender mediation that is absent in traditional criminal proceedings. Often this forgiveness provides some offenders with sort of a “clean slate,” deterring them from repeating criminal conduct. In several studies that tried to assess the benefits of victim-offender mediation, researchers saw extremely high levels of satisfaction from both parties. They found these consistent results across program sites, types of offenses, and cultures. One victim stated, “it was important to find out what happened, to hear his story, and why he did it and how.” However, it must be noted that those participants that were interviewed for the study chose mediation themselves, making involvement a “self-selective process.” This could be an overlaying factor in the findings because satisfaction may have to do with having the opportunity to choose among options for justice. The mediations were done face-to-face (where victims and offenders met together with a mediator), and also done via shuttle mediation (where the mediator met with each side separately and conveyed details about the agreement between the victim and the offender). The findings were that participants who actually had face-to-face mediations were more satisfied with the process than those who engaged in shuttle mediation. Though the idea of mediation sounds good in theory, many critics have asked whether the offenders really complete the terms of agreements they reach with their victims. The only consequence of not completing such restitutionary agreements would be the possibility that the victim would report the incomplete agreement and a traditional proceeding would ensue. Therefore the offender would have nothing to lose by failing: he could leave the agreement incomplete since the worst consequence puts him same place as he stood before the mediation. However, across studies it has been shown that about 80 to 90% of the restitutionary contracts reached during victim-offender mediation are reported as completed. The more interesting studies are those that actually compare restitution completion of offenders who participated in victim-offender mediation with those offenders who went through traditional court proceedings. There is a sense of justice and real closure for both the victim and the offender through mediation, and that is one factor that motivates completion of these self-constructed contracts. Common sense tells us that parties that create their own conditions and make their own rules are more likely to abide by them. Victim-offender mediation models in use currently can be started at any point in the judicial process. Therefore, they do not interrupt criminal justice in any way. The victims of crimes can chose mediation or decide to partake in the regular criminal and civil proceedings. In some counties that run victim-offender mediation programs, the state retains its right to pursue criminal prosecution of the offender, regardless of what restitutionary agreement is reached during the mediation. This way, the current criminal process remains in tact, but the civil system can be traded for mediation. Even in counties that drop criminal charges if a mediated agreement is reached, the agreement is usually reviewed by a judge or agency for appropriateness and fairness. Recidivism is the traditional measure used to evaluate the long-term impact of justice programs, and can provide insight to the effectiveness of victim-offender mediation as well. Most of these studies are done on juvenile offenders because their cases qualify for victim-offender mediation most often. In a thirty month study of Washington DC youth, the victim-offender mediation participants were found to be less likely to commit subsequent offenses than youth in a comparison probation group. Of the youth that did commit more crimes, the ones involved with victim-offender mediation appeared in court for less serious charges than their “comparison counterparts.” In a recent article, prominent scholars in this field reanalyzed prior studies of offenders in victim-offender mediation and reported favorable results. Other than through studies on recidivism, another way to judge the success of victim-offender mediation is to look at the cost of it. In figuring out the cost impact of the program, its effect on the criminal justice system must be considered. An overall reduction of jail or prison time saves the state or county considerable funds. Also, when cases are mediated they are not tying up the court’s time for trial. In Henderson County, North Carolina, trials were reduced by two-thirds as a result of the implementation of victim-offender mediation. Another way to look at the cost benefit of this process is the saying, “time is money.” Researchers who evaluated the victim-offender mediation program in Cobb County, Georgia found that the time required to process a mediated case was one third of the time needed for non-mediated cases. As a result of research based on this understanding, it was concluded that a number of points below. In other words, as a starting point the question is the criminal adjustment really necessary? Its theoretical basis, we shall consider the idea of restorative justice, and comparing legislative example of other country and we may find some implications. After careful overview of the current criminal adjustment system, we may consider the problem of theoretical criminal adjustment system has little problems. Through the implementation survey of the criminal mediation committee and empirical analysis of Cheonan Public Prosecutor's Office criminal mediation system, I analysis of the system and make some useful conclusion. Through the experience in the field of criminal mediation center as an mediator, I am eagerly seeking the answer on the issue of the criminal adjustment system. The criminal adjustment of the current system play a significant role for recovery, but there were little defect to be cured: freedom of decision making, exercise of veto for the sentencing, the principle of presumption of innocence. At the end of this paper, I would presented for the beginning of sincere discussion for the direction of improvement of current criminal mediation system.

Statistics

  • 340 Viewed
  • 1 Downloaded

Tools

Issue List

Citation status

* References for papers published after 2023 are currently being built.

Basic Search Advanced Search