군 행형기관 인권보장역량 평가 ·········································297
제1절 서론 ··························································································299
1. 군 행형기관 연구의 목적 및 의의 ·················································299
2. 연구의 내용 및 방법 ······································································300
가. 연구 방법 ···············································································300
나. 연구 내용 ···············································································302
다. 연구의 한계 ············································································303
제2절 군 행형기관 인권보장역량 평가를 위한 기초 검토 ··················304
1. 군 행형과 인권보장 ········································································304
가. 군 행형의 개념 ······································································304
나. 군 행형기관의 특수성 ···························································304
다. 군사법체계 개혁에 따른 영향 ··············································306
2. 군 행형기관의 인권보장 기능에 관한 선행 연구 분석 ··················306
가. 국가인권위원회 군구금시설 방문조사 결과 ·························306
나. 정책 및 학술 연구 분석 ·······················································307
제3절 군 행형기관 인권보장역량의 ‘운영･제도적 요소’ 평가 ············310
1. 군 행형기관의 운영･제도적 요소 평가의 필요성과 범위 ··············310
2. 군 행형기관과 민간 행형기관 간 운영상 법령･제도의 차이 ·········311
가. 수용자 처우에 관한 기본계획의 부재 ··································311
나. 형집행법상 접견권 강화에 따른 변경 조치 미반영 ············312
다. 교도소장의 서신 발신, 수신 금지 시 구체적 사유의
서면 작성 의무 미반영 ·························································313
라. 위로금･조위금을 지급받을 권리의 보호 규정 부재 ············313
마. 사형확정자의 지위와 처우 ····················································314
바. 시신 인도 규정의 차이 ·························································314
3. 운영상 특이점 ················································································315
가. 국군교도소 ··············································································315
나. 영창 ························································································317
4. 군 행형기관의 조직과 인력 ····························································320
가. 군 행형기관의 조직 체계 ······················································320
나. 인력 현황 ···············································································320
다. 군 교도 인력의 지위와 권한, 처우상의 문제 ·····················322
5. 수용자의 권리보장과 군 교정시설의 감독 ·····································324
가. 진정 및 청원 제도 ·································································324
나. 감독 시스템 ············································································327
6. 군 행형기관의 운영･제도적 요소 평가 ··········································327
제4절 군 행형기관 인권보장역량의 ‘물적 요소’ 평가 ·························329
1. 군 행형기관의 물적 요소 평가의 필요성과 범위 ···························329
2. 수용자의 기본적 생활 ····································································330
가. 국군교도소 ··············································································330
나. 영창 ························································································333
3. 수용자의 처우 ················································································338
가. 국군교도소 ··············································································338
나. 영창 ························································································339
4. 군 행형기관의 물적 요소 평가 ······················································343
제5절 군 행형기관 인권보장역량의 ‘인적 요소’ 평가 ·························346
1. 군 행형기관의 인적 요소 평가의 필요성과 범위 ···························346
2. 군 교정공무원 교육 프로그램 현황 ···············································346
가. 교도관 ·····················································································346
나. 교도병 ·····················································································348
3. 군 교정공무원 표적집단면접을 통한 인식 조사 ·····························349
가. 교도관 ·····················································································349
나. 교도병 ·····················································································351
4. 군 행형기관의 인적 요소 평가 ······················································353
제6절 소결 ··························································································355
1. 군 행형기관 인권보장역량 종합 평가 ············································355
2. 군 행형기관 인권보장역량 강화 방안 제언 ···································356
가. 운영･제도적 요소의 강화 방안 ············································356
나. 물적 요소의 강화 방안 ·························································358
다. 인적 요소의 강화 방안 ·························································360
결 론 ·····················································································441
제1절 행형기관 인권보장역량 종합 평가 ············································443
1. 수용자 인권보장을 위한 행형기관의 ‘제도적 역량’ 평가 ··············443
2. 수용자 인권보장을 위한 행형기관의 ‘물적 역량’ 평가 ··················444
3. 수용자 인권보장을 위한 행형기관의 ‘인적 역량’ 평가 ··················446
4. 군 수용자 인권보장을 위한 군 행형기관의 역량 종합 평가 ·········449
가. 군 수용자 인권보장을 위한 제도적 역량 평가 ···················449
나. 군 수용자 인권보장을 위한 물적 역량 평가 ······················450
다. 군 수용자 인권보장을 위한 인적 역량 평가 ······················451
제2절 행형기관 인권보장역량 강화 방안 제언 ···································451
4. 군 수용자 인권보장을 위한 군 행형기관의 역량 강화 방안 ·········461
가. 제도적 역량의 강화 방안 ······················································461
나. 물적 역량 강화 방안 ·····························································462
다. 인적 역량 강화 방안 ·····························································463
부록 1. 쟁점분석 대상 목록 ··············································521
부록 2. 수용자 인권보장 조치에 대한 교정공무원의
응답 결과 ·······························································557
Chapter 6 Evaluation of Human Rights Competencies of Military Penal Institutions
Chapter 6 discusses the evaluation of human rights competencies of military penal institutions. The evaluation focuses on military penal institutions, which are special penal institutions established under the military law system that report to the Minister of National Defense.
The operation of military correctional facilities does not constitute a main responsibility of the Ministry of National Defense (MND), and penal administration is assigned a low priority in national defense policies. Military correctional facilities are not well-known to the general public, and studies about military correctional facilities are difficult to find. For these reasons, the operational and institutional requirements for military correctional facilities are far from being standardized, their physical conditions are poor, and there is no basis for legislating even the most basic requirements. Neither is there any institutional system to train and secure correctional officials. In particular, one of the mostserious issues is assigning enlisted servicemen without any correctional expertise to correctional positions.
In light of the above, to improve the human rights competencies of military correctional facilities established under the military law system, this study analyzes the status of military correctional facilities in terms of physical, operational/institutional, and personnel elements, and discusses microscopic and macroscopic improvements for each element. Military correctional facilities can be divided into the Military Correctional Institution (MCI) and the guardhouses at each military unit.
The author conducted a focus group interview with military correctional officers and servicemen, along with on-site surveys and collection of the relevant literature and materials. The surveys were conducted at the MCI and the guardhouses of six military units. and the focus group interview involved 12 correctional officers and 16 enlisted servicemen. However, we would like to note that the findings are restricted by the lack of cooperation at some units, which refused visits or failed to provide the requested information. In addition, given the fact that the National Assembly is currently discussing the abolishment of the guardhouse system, and the MND issued a public announcement of the abolishment, this study does not consider disciplinary detention as a part of military penal administration.
Most military correctional facilities hold inmates on trial. However, the number of inmates on trial was smaller than civilian correctional facilities. Military correctional facilities hold servicemen and civilian military employees. Civilians are held at military correctional facilities only in rare cases. The status of servicemen and civilian military employees change depending on court judgments, and most of the convicted inmates are transferred to civilian correctional facilities. It explains the high percentage of inmates on trial at military correctional facilities. The low number of inmates means no overpopulation issueat the facilities. However, they do not have enough budget to maintain the facilities up to date.
Most military inmates are held at the MCI, and few cells for inmates on trial were occupied at guardhouses. Most guardhouses hold only one or two inmates on trial per year. It explains the poor conditions for inmates on trial at many of the guardhouses. Military correctional facilities are not managed under a single department. The MCI is under jurisdiction of the MND Inspection Bureau, and guardhouses are managed by the General Counsel Bureau. However, the actual management and operation of guardhouses are the responsibilities of the military police of the respective units. The military correctional facilities are expected to be influenced by the ongoing military law reform. In consideration of the situation, this study proposes possible improvements. The reform is expected to result in merges between guardhouses. Specific operational and institutional elements at military correctional facilities were identified through on-site visits, the focus group interview, and literature review.
The operational elements include: meal criteria at the MCI; reception procedures relying on hand-written documents; separation based on ranks; TV rules; existence and use of post exchange (PX); TV rules at guardhouses; purchase of items; assigned budget; and daily schedules. Military facilities provide better meals and purchasable items compared with civilian facilities. However, military inmates experience difficulties with administrative procedures and access to the inmate culture because they are not allowed to use the Borami system used by civilian inmates.
In addition, the Military Penal Administration Act does not fully incorporate the amendment to the Penal Administration Act regarding promotion offundamental rights, and this study analyzes the difference between the two laws. The related issues include: absence of framework plans for treatment of inmates; failure to adopt the changes resulting from the enhanced right to counsel under the Penal Administration Act; failure to incorporate wardens’ obligation to provide written reasons for restricting letter exchange; absence of provisions regarding the right to receive consolation money; the discrepancy of status and treatment of inmates sentenced to capital punishment between civilian and military facilities; and discrepancy between the provisions on handover of bodies between civilian and military facilities.
This study also looks into the organization systems and workforce status of the military facilities, and discuss issues regarding their status, powers, and treatment. The key issues include the non-recognition of the “judicial police officer” status of correctional officers, and the conflict between correctional servicemen and inmates who are officers or non-commissioned officers. This study also analyzes the current status of the laws and systems to protect inmates’ rights and supervise correctional facilities. While most inmates have access to complaints and other systems for protecting their rights, some facilities posed issues with their complaint boxes. The level of supervision was poor at most facilities. These issues can be attributed to the military authorities’ lack of interest in military correctional facilities.
As for the physical elements at military correctional facilities, this study reviews and evaluates the basic living conditions based on the findings of on-site visits. The physical elements include the status of guardhouse facilities and cells, meals, clothing and beddings, hygiene facilities, and medical facilities therein.
In addition, this survey looks into the conditions of facilities for ensuring inmate treatment such as gyms, libraries, religious facilities, vocational training facilities, educational facilities, communication facilities, disciplinary facilities, and cells for female inmates.The physical elements were where the military correctional facilities were found to be the most vulnerable. Due to low budget and lack of interest from the authorities, many of the facilities did not have the basic elements required for detention facilities. As for the MCI, most facilities were deteriorated, proper air conditioning was not provided, and many of the medical facilities were in poor conditions or inoperable. These issues require urgent attention because they indicate lack of protection of inmates’ right to health. Guardhouses lacked standardized criteria, which resulted in greatly varying degrees of deterioration depending on when the facilities were constructed, and different structures and equipment among facilities. Actions need to be taken to standardize the facilities.
With regard go the personnel elements, this study reviews the content and quality of job training for correctional officers and servicemen based on the focus group interview and literature review, and looks into their awareness and understanding of correctional work.
As was the case with the overall military correctional facilities, one of the most serious issues with correctional officials in the military was the absence of standardization of job skills. Correctional officers showed lack of expertise, and the level of expertise greatly varied depending on the efforts taken by individual officers. The issue was more serious among correctional servicemen, who are usually assigned to facilities without proper training. These issues greatly undermine the correctional and rehabilitative effect of the facilities, and interfere with the protection of inmates’ fundamental rights.
Based on the findings on these elements, this study proposes three categories of tasks to enhance the human rights competencies of military penal institutions: standardization and modernization of the physical elements; standardization of the operational and institutional elements, alignment with the civilian facilities, and enhanced accountability of the personnel and the organizations; and enhanced expertise of the personnel elements.In addition, this study proposes microscopic and macroscopic measures to enhance each element of human rights competencies.
The macroscopic measures to enhance the operational and institutional elements include: managing the military correctional facilities under a single department; amending the relevant laws to grant military correctional officers with the status of judicial police officers; revising the organization of military correctional officers and servicemen to use the latter only as assistants; and replacing correctional officers with correctional civilian employees with expertise in the area. The microscopic measures include: establishing a framework plan for the treatment of military inmates by amending the relevant laws; incorporating the enhancement of inmates’ rights under the Penal Administration Act into the Military Penal Administration Act; matching the status of inmates sentenced to capital punishment under the Penal Administration Act with that of the Military Correctional Institution; adopting the Borami system in the military correctional administration; unifying the rules across guardhouses at different units; increasing the budget for guardhouse operation, and; reinforcing the supervision functions for military correctional facilities under the relevant laws.
The macroscopic measures to enhance the physical elements include: increasing the budget for construction of a new MCI facility, and; establishing regional military detention centers and discontinue the operation of guardhouses at peace times. The microscopic measures include: improving air conditioning systems and medical facilities until the new MCI facility is completed; installing safety systems within disciplinary cells at the MCI; setting up outdoor spaces for drying laundries and developing measures to standardize bedding management; adopting mandatory installation of changing rooms for inmates during reception; securing books and exercise equipment at guardhouses; and replacing visiting room barriers at guardhouses with double-layer glass.
The measures to reinforce the personnel elements include: entrusting the jobtraining of correctional officers (correctional civilian military employees) with the IOJ; separately recruiting enlisted servicemen for correctional positions, and; providing them with an opportunity to apply for correctional officer positions upon discharge.