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[형정원 Criminology] 형사사법기관의 인권보장역량 종합평가 연구(Ⅱ): 행형기관의 인권보장역량 평가

작성일: 2020-01-22조회: 50

국문요약 ····················································································1

제1장 강태경

서 론 ·······················································································25

제1절 연구의 목적과 필요성 ·································································28

제2절 연구방법 ······················································································38

제2장 강태경・김영중

행형기관의 인권보장역량 평가를 위한 쟁점 분석··············45

제1절 행형 관련 인권쟁점 분석의 필요성 및 범위 ······························47

제2절 수용자의 진정・청원 등 분석 ·······················································48

1. 국가인권위원회 권고 분석 ································································48

가. 국가인권위원회 진정 및 권고 현황 ·······································49

나. 진정에 대한 권고 내용 분석 ··················································51

2. 법무부장관 청원 분석 ······································································62

가. 법무부장관 청원 현황 ·····························································62

나. 주요 청원 유형 내용 분석 ······················································65

3. 법무부 구금시설 실태조사 결과 분석 ··············································66

가. 법무부 구금시설 실태조사 현황 ·············································66

나. 개선조치요구 사항 분석 ··························································69

제3절 행형 분야 인권실태 관련 언론 보도 분석 ··································71

1. 행형 분야 인권실태 관련 언론 보도 동향 ·······································71

2. 영역별 내용 분석 ·············································································74

가. 수용 질서 ·················································································74

나. 수용자의 기본적 생활 ·····························································75

다. 수형자 처우 ··············································································77

라. 수용자의 권리보장과 교정시설에 대한 감독 ·························78

마. 미결수용자와 소수수용자 관리 ···············································79

바. 교정 시설과 직원 ·····································································80

사. 기타 쟁점 ·················································································84

제4절 행형기관의 인권보장역량 관련 선행연구 동향 분석 ···················86

1. 행형기관의 인권보장 기능에 관한 학술적 논의 동향 분석 ·············86

가. 행형기관의 인권보장역량에 관한 학술적 논의 동향 분석 ···86

나. 영역별 내용 분석 ·····································································88

2. 행형기관의 인권보장 기능에 관한 정책적 논의 동향 분석 ···········107

가. 행형기관 관련 국제인권규범 준수 ·······································107

나. 수용자의 건강권 ····································································109

제3장 김영중

행형기관 인권보장역량의 ‘제도적 요소’ 평가 ··················111

제1절 제도적 요소 분석의 필요성 및 범위 ········································113

제2절 수용질서 ····················································································116

1. 수용지역 ·························································································116

2. 연령에 따른 구분 수용 ··································································117

3. 위험성에 따른 구분 수용 ·······························································118

4. 기타의 구분수용 ·············································································120

5. 보호장비 ·························································································121

6. 외부 인력의 투입 ···········································································123

7. 수용자의 관여금지 ··········································································124

제3절 수용자의 기본적 생활 ·······························································125

1. 정상성의 원칙 ················································································125

2. 의사의 역할 ····················································································126

가. 수용자에 대한 진단과 치료 ··················································127

나. 위생상태 관리업무 ·································································129

다. 수용자의 건강상태 보고 ························································130

3. 수용자 의료의 기록과 접근권 보장 ···············································132

제4절 수형자의 처우 ···········································································133

1. 교도작업의 본질 ·············································································133

2. 교도작업의 부과에 있어서 금지되는 사항 ·····································134

3. 교도작업의 내용상 유사성 ·····························································135

4. 교도작업에 대한 수당 등 ·······························································135

5. 교도작업에서 수형자 보호 ·····························································137

6. 처우의 사회화 ················································································138

7. 사회적응 프로그램 ··········································································140

8. 갱생보호 ·························································································141

제5절 수용자의 권리보장과 교정시설의 감독 ·····································143

1. 수용자의 지위 ················································································143

2. 수용자의 이송과 관련된 보호조치 ·················································144

3. 법률가의 조력 등 ···········································································146

4. 감찰 ································································································148

제6절 미결수용자와 소수수용자의 관리 ··············································151

1. 정신이상수용자 ···············································································151

2. 외국인 수용자에 대한 차별금지 ·····················································153

3. 외국인 수용자의 영사 등과의 접촉 ···············································154

4. 외국인 수용자에 대한 종교와 문화의 존중 ···································155

5. 성적 소수자에 대한 처우 ·······························································156

제7절 소년・여성수용자 처우 ·······························································158

1. 소년교소도의 규모 ··········································································159

2. 소년수용자에 대한 보호장비와 강제력 제한 ··································160

3. 소년수용자의 징벌절차 ···································································160

4. 소년수용자의 사회복귀 ···································································162

5. 소년수용자를 관리하는 직원의 전문성 ···········································162

6. 여성수용자의 이송 ··········································································163

7. 여성수용자의 신체제한 장치 ··························································164

8. 여성수용자의 평가와 분류 ·····························································165

9. 여성수용자의 정신건강 ···································································165

10. 여성수용자 교정인력과 훈련 ························································166
11. 여성수용자 출소준비 ····································································168
제8절 소결 ··························································································169
1. 평가결과 ·························································································169
2. 개선방향 ·························································································171
제4장 강태경
행형기관 인권보장역량의 ‘물적 요소’ 평가 ······················175
제1절 물적 요소 분석의 필요성 및 범위 ············································177
제2절 교정시설 내 기본적 생활에 대한 수용자 만족도 ·····················178
1. 식사 ································································································179
2. 지급물품 ·························································································180
가. 의류 ························································································180
나. 침구류 ·····················································································181
3. 청결・위생 ·······················································································182
4. 생활공간 ·························································································183
가. 조명 ························································································183
나. 냉난방 ·····················································································184
5. 요약 ································································································185
제3절 건강권 보장을 위한 인프라 ······················································186
1. 수용자 진료 및 건강검진 현황 ······················································186
가. 교정시설 내 진료 현황 ·························································186
나. 외부 진료 현황 ······································································187
다. 원격의료 현황 ········································································189
라. 건강검진 현황 ········································································190
2. 교정시설 내 진료에 대한 수용자의 만족도 ···································191
가. 진료 신속성에 대한 수용자의 만족도 ··································191
나. 진료 품질에 대한 수용자의 만족도 ·····································192
3. 교정시설 내 의료 인프라 ·······························································194
가. 교정시설 의료인력 현황 ························································194
나. 정신질환수용자에 대한 의료처우를 위한 인프라 ···············195 

4. 교정공무원 정신건강 증진 인프라 ·················································196

제4절 교정시설 개선 ···········································································199

1. 생활환경 개선 ················································································199

가. 수용동 난방시설 개선 및 단열재 보강 ································199

나. 화장실 개선 ············································································200

2. 안전 강화 작업 – 석면 제거・스프링클러 설치・내진 보강 ············201

가. 석면 제거 ···············································································202

나. 스프링클러 설치 ····································································202

다. 내진 보강 ···············································································203

제5절 과밀수용 ····················································································204

1. 과밀수용 실태 분석 ········································································205

가. 과밀수용 현황 ········································································205

나. 과밀수용 원인 ········································································207

다. 과밀수용 부작용 ····································································209

2. 과밀수용 해소를 위한 교정본부의 물적 역량 강화 노력 ···············210

가. 교정본부의 과밀수용 종합대책 수립 ···································210

나. 신・증축 등 교정조성 ·····························································211

제6절 교대 근무 체계와 인력 문제 ····················································213

1. 교대 근무 체계 연혁 ······································································213

2. 현 교대 근무 체계 운영상 문제점 및 개선 방안 ··························214

제7절 소결 ··························································································217

제5장 최영신・고재익

행형기관 인권보장역량의 ‘인적 요소’ 평가: 교정공무원

의식조사를 중심으로 ···························································221

제1절 교정공무원 의식조사 개관 ························································223

1. 조사대상자의 선정 및 설문조사의 주요 내용 ································223

가. 조사대상 교정공무원의 선정 ················································223

나. 설문조사의 주요 내용 ···························································225

2. 조사대상자의 특성 ··········································································227

가. 조사대상자의 사회인구학적 특성 ·········································227

나. 조사대상자의 직무 관련 특성 ··············································228

다. 교정공무원의 인권청원업무 경험과 업무상 어려움 ············230

제2절 교정공무원의 일반적 인권의식 및 수용자 인권현황에 대한

인식 ··························································································232

1. 교정공무원의 교정시설 내 인권보호 상황에 대한 인식 (IV-1) ····232

가. 교정시설 내 인권보호 상황에 대한 인식 ····························232

나. 교정시설 내 인권보호 상황에 대한 평가의 하위집단별

평균값 비교 ············································································234

2. 교정공무원의 수용자 처우 관련 인권의식 ·····································238

가. 수용자 처우 관련 인권의식 ··················································238

나. 수용자 처우 관련 인권의식의 하위집단별 평균값 비교 ····241

다. 수용자 처우 관련 인권지수의 하위집단별 비교 ·················247

제3절 교정공무원의 진정・청원 관련 경험 및 인식 ····························249

1. 교정공무원의 직무 수행 중 수용자와의 관계에서 겪는 어려움 ····249

2. 교정공무원의 수용자 진정・청원 및 고소・고발 피해 경험 ·············250

가. 수용자 진정・청원 및 고소・고발 피해 경험 ························250

나. 수용자 진정・청원 및 고소・고발 피해 경험에 대한 반응

및 어려움 ···············································································252

다. 진정・청원 및 고소・고발 수용자에 대한 편의 제공 경험 ··254

3. 진정・청원의 증가에 대한 평가 및 대응방안에 대한 인식 ·············256

가. 진정・청원의 증가에 대한 평가 ············································256

나. 진정・청원의 오남용에 대한 대응방안 ··································258

제4절 교정공무원의 국가인권위원회 결정례에 대한 인식 및

수용정도 ····················································································259

1. 교정공무원의 국가인권위원회 결정례에 대한 이해 ························259

가. 국가인권위원회 결정례에 대한 이해정도 ····························259

나. 국가인권위원회 결정례에 대한 이해정도의 하위집단별

평균값 비교 ············································································263

2. 교정공무원의 국가인권위원회 결정례에 대한 적절성 평가 ············269

가. 국가인권위원회 결정례에 대한 적절성 평가 ·······················269

나. 국가인권위원회 결정례에 대한 적절성 평가의 하위집단별

평균값 비교 ············································································271

제5절 교정공무원의 직무 관련 인권교육 현황 및 평가 ·····················276

1. 교정공무원의 직무 관련 인권교육 현황 ·········································276

가. 법무연수원의 집합 인권교육 ················································276

나. 법무연수원 사이버 인권교육 ················································278

다. 법무부 인권국 주관 인권교육 ··············································278

라. 각 교정기관별 자체 인권교육 ··············································279

2. 교정공무원의 직무 관련 인권교육 경험 ·········································279

3. 교정공무원의 직무 관련 인권교육에 대한 평가 ·····························282

4. 수용자 인권보장을 위한 교정행정 전반의 선결 과제에 대한 의견 ··284

제6절 소결: 설문조사결과에 나타난 교정공무원의 인권보장역량의

평가 ··························································································286

1. 설문조사의 대표성과 조사대상 교정공무원의 특성 ························286

2. 교정공무원의 일반적인 인권의식 및 수용자 인권현황에 대한

인식 ································································································287

가. 교정공무원의 교정시설 내 수용자의 인권보호 상황에

대한 인식 ···············································································287

나. 교정공무원의 수용자 처우 관련 인권의식 및 인권지수

비교 ························································································288

3. 교정공무원의 진정・청원 관련 경험 및 인식 ·································289

가. 교정공무원의 수용자 진정・청원 및 고소・고발 피해 경험 ··289

나. 수용자 진정・청원 및 고소・고발 피해 경험에 대한 반응

및 어려움 ···············································································290

다. 진정・청원 및 고소・고발 수용자에 대한 편의 제공 경험 ··290

라. 진정・청원의 증가에 대한 평가 및 대응방안에 대한 인식 ·· 291

4. 교정공무원의 국가인권위원회 결정례에 대한 인식 및 수용정도 ···291

가. 국가인권위원회 결정례에 대한 이해 정도 ··························291

나. 교정공무원의 국가인권위원회 결정례에 대한 적절성 평가 ··292

5. 교정공무원의 직무 관련 인권교육 경험 및 평가 ···························293

6. 수용자 인권보장을 위한 교정행정 전반의 선결 과제에 대한 의견 ··295

제6장 임태훈・김형남・방혜린・강태경

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

제7장 박선영

해외 행형기관 인권보장 역량강화 정책 ····························363

제1절 서론 ··························································································365

제2절 행형의 제도적 개선을 통한 인권보장역량 증진 ·······················366

1. 수용자 간 인권침해 방지 노력 ― 미국의 「교도소강간 근절법」

(PREA)을 중심으로 ·······································································367

가. 미국 수용자 인권보장 강화를 위한 입법 사례 ···················367

나. 「교도소강간 근절법」 시행을 통한 수용자 인권보장 강화 ···369

2. 소수자 수용자 인권보장 강화 노력 ·············································376

가. 유엔마약 및 범죄국의 「특별처우 수용자 핸드북」 ·············376

나. 임신 중인 수용자 처우 개선 ················································378

다. 성적 소수자 수용자 처우 개선 ············································379

라. 장애인 수용자 처우 개선 ······················································383

3. 수용자 지원 단체의 활동 및 민관협력을 통한 행형 제도 개선

노력 ································································································389

가. 국제 형사개혁위원회(Penal Reform International) ·······389

나. 미국 사례 ···············································································390

4. 진정・청원 남용에 대한 효과적 대처 노력 ·····································394

가. 미국의 수용자 권리구제 제도 개관 ·····································394

나. 진정・청원 남용에 대한 제한 제도 ·······································399

제3절 행형의 물리적 환경 개선을 통한 인권보장역량 증진 ···············402

1. 건축가가 참여하는 교도소 시설 및 환경 개선 ······························402

2. 수용자 인권보장 증진을 위한 교도소 공간 재배치 및 환경 개선

동향 ································································································404

가. 미국 ························································································404

나. 영국 ························································································412

다. 노르웨이 ·················································································415

제4절 행형 담당자 교육 및 지원을 통한 인권보장역량 증진 ·············418

1. 행형 담당자 훈련을 통한 수용자 인권보장역량 강화 노력 ···········419

가. 국제연합의 행형 담당자 훈련 매뉴얼 ··································419

나. 유럽연합 행형 담당자 훈련 프로그램 현황 ························423

2. 행형 담당자의 직무 스트레스 관리 및 심리적 지원을 통한 행형

담당자의 직무 역량 강화 노력 ····················································425

가. 교정직원의 직무 스트레스에 주목해야 하는 이유 ·············426

나. 교정직원 웰빙 컨퍼런스 ························································428

다. 교정직원의 주관적 안녕감 증진 프로그램 ··························429

제5절 시사점 ·······················································································432

1. 행형의 제도적 개선을 위한 시사점 ·············································432
2. 행형의 물리적 조건 개선을 위한 시사점 ·····································435
3. 행형의 인적 역량 강화를 위한 시사점 ········································436
제8장 강태경・최영신・김영중・고재익・임태훈・김형남・방혜린・박선영
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
1. 수용자 인권보장을 위한 행형기관의 제도적 역량 강화 방안 ········452
가. 교정관계 법규 및 지침 정비 ················································452
나. 인권기본법 제정 ····································································453
다. 수용자 간 인권침해 방지를 위한 특별법 제정 ···················453
라. 수용자 지원 시민단체와의 협업 체계 구축 ························454
2. 수용자 인권보장을 위한 행형기관의 물적 역량 강화 방안 ···········454
가. 시설의 이전・신축 ‘계획’과는 별개로 ‘현재’ 노후 시설 및
설비 개선을 위한 예산 확보 ················································454
나. 제도적 역량을 통한 물적 역량 강화 ···································455
다. 전문 의료처우 시설을 포함한 교정 복합시설 건설 ············456
라. 과밀수용 및 인력 부족 해소를 위한 범정부 협의체 구성 ··457
3. 수용자 인권보장을 위한 행형기관의 인적 역량 강화 방안 ···········457
가. 수용자의 진정・청원 오남용에 대한 대응책 마련 ················457
나. 신입 교정공무원의 직무교육 확대 및 교정공무원의
인권교육 강화 ········································································458
다. 연구에 기반을 둔 인권보호 훈련 매뉴얼 개발 ···················460
라. 교정공무원의 정신건강 증진을 위한 지원책 강화 ·············460 

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
참고문헌 ···············································································465
Abstract ···············································································489
부록 1. 쟁점분석 대상 목록 ··············································521
부록 2. 수용자 인권보장 조치에 대한 교정공무원의
응답 결과 ·······························································557