형사사법의 세 가지 지층과 피해자의 지위

Abstract

As a reflection of modern criminal justice system that excludes criminal victim from the criminal procedure, the reinstation of criminal victim which partly guarantees the victim's participation in criminal procedure, such as the right of testimony in the court, has been tried. But it is the reality that this reinforcement of criminal victim's procedural status remains in the level of modern criminal justice system. This article demonstrates that through the concept of Madang-understanding and Madang-truth, the modern paradigm of criminal justice system and the new paradigm of restorative justice and therapeutic jurisprudence could be simultaneously and coherently operated in order to find a new status of criminal victim. According to the view of Madang-understanding, finding of facts could be possible only in the intersubjective communicative trial court. And as a story empathized with all participants of the trial, the concept of Madang-truth becomes an articulation joint shared by the modern criminal justice system, restorative justice, and therapeutic jurisprudence. The concept of Madang-truth performs as a guidance of litigation reform to secure criminal victim's active subjectivity for the actual protection of her.