국제인권법연구회

국제인권법과 사법

Human Rights in the Administration

of Justice

Professional Training Series No. 9

UN OHCHR

A Manual on Human Rights for Judges, Prosecutors and Lawyers

법률가(법관, 검사, 변호사)를 위한 인권편람

축 사

유엔(UN)인권최고대표

한 사회에서 사법이 어떻게 운용되는지는 그 사회의 건강함(well-being)을 알

수 있는 가장 기본적인 지표 중 하나입니다. 세계인권선언이 강조하였듯이 “인간이 폭

정과 억압에 저항하는 최후의 수단으로 반란에 호소하도록 강요받지 않으려면 법의

지배에 의해 인권을 보장하는 것은 필수적”입니다. 이러한 목표가 달성될 수 있도록

할 책임은 각국의 국내법 체계와 사법운용에 달려 있습니다.

인권침해행위에 대한 면책(impunity)에 대항하고 책임성과 법의 지배를 강화하

는 것은 유엔인권최고대표 사무소의 2014-2017 운영계획의 여섯 가지 주요 과제 중

하나이고, 사법절차와 관련한 인권의 문제는 이 과제를 달성하기 위한 주된 관심 영역

입니다. 이러한 맥락에서 인권최고대표 사무소는 사법의 운용에 관련된 인권 기준의

준수를 보장하는 프로젝트, 특히 적법절차의 원칙과 공정한 재판을 받을 권리의 보장

에 관한 프로젝트를 지지하고 있습니다.

독립된 법조 직역은 인권의 보호에서 근본적인 역할을 담당합니다. 이들은 사법

절차 내에서 국제인권법이 올바르게 집행되도록 하고, 권리를 침해당한 개인들이 국

내에서 효과적인 구제를 받을 수 있도록 보장함에 있어서 매우 중요한 역할을 합니다.

법관, 검사 및 변호사들이 이 역할을 제대로 수행하기 위하여 국제법률문서에 규정된

인권 기준은 물론 세계적 또는 지역적 기구에서 발전시키고 있는 관련 법리에 관하여

도 접근이 가능하여야 할 것입니다.

“사법의 운용에서의 인권”이란 이름을 갖는 본서는 매뉴얼과 지침(Facilitator’s

Guide)으로 구성되어 있는데, 이는 세계변호사협회(International Bar Association)

와 공동으로 작업한 결과물입니다. 세계변호사협회는 200개가 넘는 변호사 협회와 법

률가 단체로 구성된 주요 국제법률단체입니다. 이 책은 법조인들에게 국제인권기준에

iiiHuman Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

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관한 포괄적이고도 핵심적인 교육교재로서의 역할을 할 수 있도록 작성되었습니다.

이 매뉴얼의 독자들은 국제인권법과 세계적, 지역적 기구 및 각국의 국내 법원

의 법리에 관한 기본적인 정보를 제공받을 수 있을 것입니다. 각 장은 특정한 인권 영

역을 다루고 있습니다. 법조 직역의 성격상 이 매뉴얼은 여러 가지로 활용될 수 있을

것입니다. 예컨대, 단체 연수 활동(collective exercise)을 위한 실습 교재로 사용될 수

도 있고, 개별적 연구 활동을 위하여 사용될 수도 있습니다. 또한 법률의 해석과 적용

을 위한 참고자료로서도 활용될 수 있을 것입니다.

나는 대한민국의 국제인권법연구회가 이 매뉴얼을 번역하기로 나섰다는 점에

대하여 매우 감사해 하고 있습니다. 그리고 이 매뉴얼과 그에 기초한 다른 활동들이

대한민국의 법관, 검사, 변호사로 하여금 변화의 주역이 되도록 이끌고, 국제인권법의

실무적 적용에 직접적인 기여를 할 수 있기를 희망합니다.

Zeid Ra’ad Al Hussein

유엔인권최고대표

2014. 11.

iv Human Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

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FOREWORD

by the United Nations High Commissioner for Human Rights

The way in which justice is administered in a society is one of the basic indicators

of its well-being. As highlighted by the Universal Declaration of Human Rights, “...it

is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion

against tyranny and oppression, that human rights should be protected by the rule of

law”.1) It is for national legal systems and the administration of justice to ensure that this

goal is achieved.

Combating impunity and strengthening accountability and the rule of law is

one of the six thematic priorities of the Management Plan for 2014-2017 of the Office

of the United Nations High Commissioner for Human Rights, and human rights in the

administration of justice is one of the main focus areas of this strategy. In this context,

my Office supports projects aimed at ensuring compliance with human rights standards

relevant to the administration of justice, particularly with regard to due process and fair

trial guarantees.

Independent legal professions play a fundamental role in the protection of

human rights. They play a crucial role to ensure that international human rights law is

properly enforced within the judicial process and that individuals whose rights have

been violated can find an effective remedy domestically. In order to discharge this

responsibility, judges, prosecutors and lawyers need to have access to information on the

human rights standards laid down in international legal instruments and to the related

jurisprudence developed by universal and regional human rights mechanisms.

1) Universal Declaration of Human Rights, third preambular paragraph.

vHuman Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

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The present publication “Human Rights in the Administration of Justice”,

composed of a Manual and a Facilitator’s Guide, is the result of a joint endeavour

with the International Bar Association, a key international legal organization with

more than 200 member bar associations and law societies. Its objective is to provide

a comprehensive core curriculum on international human rights standards for legal

professionals.

Readers of the Manual are offered basic information on international human

rights law and the jurisprudence of universal and regional bodies and national courts.

Each module addresses a specific human rights area. In view of the nature of the legal

professions, the Manual should have multiple applications: as training material for

collective exercises, as a resource tool for carrying out individual studies, and as a

reference source for the interpretation and application of the law.

I am very grateful to the Republic of Korea’s Research Society in International

Human Rights Law for taking the initiative to translate the Manual, and hope that this

material and other initiatives based on it will lead judges, prosecutors and lawyers

to be agents of change and to contribute directly to the practical implementation of

international human rights standards.

Zeid Ra’ad Al Hussein

United Nations High Commissioner for Human Rights

November 2014

vi Human Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

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우리나라에서 인권의 국제적 보장 내지 국제인권법에 관한 본격적인 논의가 시

작된 것은 1990년대 초반 무렵 유엔 가입과 더불어 두 개의 국제인권규약에 가입한

때라고 말할 수 있습니다. 그로부터 사반세기가 지난 오늘에 이르러서까지 우리나라

법조인이나 법학자들 중에서도 국제인권법의 실체와 실효성, 특히 그 재판규범성에

대하여 여전히 의혹을 가진 이들이 의외로 많습니다. 이는 유럽인권재판소와 같은 법

적 구속력을 가진 국제인권제도를 갖추지 못한 탓으로 돌릴 수도 있겠으나, 그 동안

법관이나 검사, 변호사 등이 국내재판과정에서 알게 모르게 국제인권법을 사실상 도

외시한 데서도 그 원인을 찾을 수 있을 것입니다. 전 국제사법재판소장 로잘린 히긴스

교수가 분류한 법문화적 유형 분석에서 보듯이, 그 동안 우리 법조는 ‘국제(인권)법 비

친밀형’ 유형에 속하였다고 볼 수도 있습니다. 국제인권법이 본질적으로 국제인권재

판소의 재판규범임은 말할 나위가 없으나, 아울러 오늘날 그것은 각국 국내법원의 재

판규범이 될 수 있다는 점에 대해서는 의견일치를 보이고 있습니다. 오히려 법이론 및

법실무적으로 국내법원에서의 재판규범성을 어떻게 확보할 것인가라는 방법론이 논

의의 초점을 이루고 있습니다. 그것은 기본적으로 각국의 헌법규정과 관련 법령에 관

한 국내법원의 해석을 통하여 다양한 형태로 나타날 수밖에 없습니다. 이와 관련하여

변형이론과 수용이론, 직접적용가능성 또는 자기집행성, 간접적용, 역외적용 등에 대

해서 각국 판례와 학설상으로 많은 논쟁이 이루어지고 있습니다. 그런데 이것은 헌법

규정에 대한 순수한 법이론 내지 법해석의 문제라기보다는, 오히려 국내법원, 특히 법

관이 재판과정에서 국제인권법을 적극적으로 적용하여 국제인권기준을 국내법적으로

수용하고자 하는 사법정책적 결단의 문제라고 볼 수도 있습니다. 대법원과 헌법재판

소는 국내법령, 특히 헌법 해석과의 규범충돌 등을 우려하여 국제인권법의 적용에 대

하여 여전히 소극적 입장을 취하고 있으나, 최근 주로 우리나라 하급심 법원을 중심으

로 국제인권법을 직접 또는 간접적용한 판결들이 상당히 선고되는 등 매우 고무적인

현상이 나타나고 있습니다.

이 책의 원서가 이미 2002년에 출간되어 세계 각국 법조인들의 국제인권법지침

서로 활용되어 온 그간의 사정에 비추어 보면 만시지탄일지도 모르나, 이제라도 한국

viiHuman Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

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어로 번역, 출간하게 된 것은 매우 뜻 깊은 일입니다. 2011년 10월 무렵 국제인권법연

구회 커뮤니티가 결성된 후 약 3년이 흐른 지금까지 우리 연구회 회원들은 온라인과 오

프라인 공간에서 정기연구회와 공동학술세미나, 초청강연회 등을 개최하고, 난민법,

법관론, 표현의 자유 등의 소모임을 통하여 매우 활발한 연구 활동을 하여 왔습니다.

그 중에서도 가장 중요한 연구 활동은 바로 이 책의 번역 작업이라 할 수 있습니다.

지난 3년 동안 100여 명의 회원들이 이 번역 작업에 참여하였습니다. 연구회

의 거의 모든 회원들이 번역 및 출간 작업에 참여하였다 하여도 과언은 아닙니다. 평

소 각자 본연의 재판업무 등으로 바쁘게 지낼 수밖에 없는 모든 회원들의 자발적인 수

고가 없었더라면 결코 이 번역서는 세상의 빛을 보지 못하였을 것입니다. 바야흐로 이

번역서를 출간함에 가슴 벅차고 감개무량한 이 마음을 모든 회원들과 같이 하고 싶습

니다. 모든 회원들에게 진심으로 감사한 마음을 전합니다. 특히 처음부터 이 번역작업

을 기획하고 직접 번역에도 참여하시면서 격려하고 독려하여 주신 김명수 전임 회장

님, 이인석, 유승룡 전임 간사님, 김예영 전임 학술팀장, 김영훈 전임 기획팀장께 깊이

감사드립니다. 그 어느 누구보다도 노고를 아끼지 않으셨던 분들은 지금까지 번역팀

을 끝까지 이끌어 오시면서 출간 작업까지 마무리 해 주신 이수진 번역팀장님과 팀원

여러분, 그리고 번역본 원고를 마지막까지 매의 눈으로 꼼꼼히 살펴주신 김기영 부장

판사님, 강재원 판사님을 비롯한 감수팀원 여러분들입니다. 이 책의 원저작권자인 유

엔출판부 측과 지루한 저작권 협상을 성공리에 마무리해주신 하정훈 판사님께도 깊이

감사드립니다. 그리고 이 번역서의 번역 및 출간작업을 마지막까지 총 지휘하신 김성

수 현 간사님, 신재환 기획팀장님과 안승훈 학술팀장님의 노고에 깊은 감사를 드립니

다. 그밖에 일일이 거명할 수 없을 정도로 많은 회원님들께서 이 책의 번역과 출간에

기여하였습니다. 이 모든 분들께 감사드립니다. 아울러 이 책의 한국어 번역본 출간을

기꺼이 수락하신 유엔인권최고대표 사무실, 국제변호사협회, 유엔출판부의 관계자들

께도 감사를 드립니다. 또한 어려운 재정여건에도 불구하고 번역서의 출간을 허락하

신 사법발전재단과 법원행정처 관계자 여러분들께도 깊이 감사드립니다. 이상에서 열

거한 모든 이들의 수고가 헛되지 않도록, 이 번역서가 우리나라 국내법원의 재판과정

에서 국제인권법이 재판규범으로 하루빨리 정착하는 데 작은 도움이나마 되길 기대합

니다.

2014. 11.

국제인권법연구회 회장 김 태 천

viii Human Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

발간사

번역에 관하여

『Manual on Hunman Rights for Judges, Prosecutors and Lawyers』를 마

침내 한국어로 번역하였습니다. 국제인권법연구회 회원인 100여명의 법관들이 2011

년부터 2014년까지 바쁜 재판일정 속에서 시간을 쪼개어 이 책의 번역작업에 참여하

였습니다. 우리는 짧지 않은 시간 동안의 번역작업을 하면서 많은 선배, 후배, 동료 법

관들을 만나고, 그 과정에서 법관으로서의 인권에 대한 열정과 창조적이고도 다양한

생각들을 서로 느끼고 배울 수 있었습니다.

이 책을 번역하면서 무엇보다 원문에 충실하고자 하였고, 또한 한국어로 읽기

쉽고 이해하기 쉽도록 나름대로 최선을 다하였습니다. 그러나 이 책의 방대함과 빠듯

한 재판업무로 인한 시간상의 한계로 번역에서 실수가 없으리라고 기대하기는 어렵습

니다. 나중에라도 번역에 오류가 발견되거나 지적이 나오면 개정판에 반영할 것을 약

속드림과 아울러 독자 여러분들께서도 국제인권법연구회의 hrforjudges@gmail.com

으로 이 책에 관한 다양한 의견을 주시면 감사하겠습니다.

덧붙여 우리는 이 책이 국제적 인권기준에 대한 새로운 안내서로서의 역할을 충

분히 하게 되리라 기대하면서 번역에 참가한 법관의 명단을 소개합니다(가나다 순, 동

명이인의 구별을 위하여 필요한 경우 괄호안에 사법연수원 기수를 병기하였음).

강건, 강인혜, 강재원, 강희경, 고연금, 고은설, 김경훈, 김기영, 김도균(27기),

김도형, 김석범, 김성수(24기), 김수경, 김승곤, 김예영, 김용덕(27기), 김윤정, 김재

령, 김정아, 김정운(38기), 김진선, 김태환(38기), 김형연, 남선미, 남해인, 류영재, 문

수생, 민경화, 민지현, 박노수, 박미선, 박병삼, 박정수, 박정훈, 박준석, 박형순, 서호

원, 설정은, 성원제, 송영환, 신원일, 안승훈, 안지연, 예혁준, 오대석, 오승이, 오흥

록, 우경아, 우인성, 유제민, 유지원, 윤웅기, 이다우, 이동연, 이명철, 이병희, 이석

재, 이수진(31기), 이승엽, 이승윤, 이승훈(33기), 이영광, 이옥형, 이의진, 이인석, 이

정훈, 이준희, 이창현, 이탄희, 임진수, 장성학, 장수영(32기), 전서영, 전아람, 정계

선, 정성호, 정은영(33기), 정인섭, 정재용(재판연구원), 정지원, 정찬우, 정희영, 조

ixHuman Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

번역에 관하여

정민, 진정화, 최영은, 최은주, 최형준, 최환영, 표극창, 하정훈, 한성수, 한성진, 함윤

식, 허문희, 허준서, 현낙희, 현의선, 홍은기, 황미정

x Human Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

번역에 관하여

서 문

유엔(UN) 인권최고대표

한 사회에서 정의가 구현되는 양상은 그 사회의 행복의 척도입니다. 세계인권선언에서

도 강조하고 있는 바와 같이, “인간이 폭정과 억압에 대항할 수 있는 마지막 수단으로서 반란

에 호소하도록 더 이상 강요받지 않으려면, 인권이 법의 지배에 의해서 보호되어야 함은 필

수적입니다.”1) 이러한 목표가 달성될 수 있도록 보장하는 것이 개별국가의 법률제도와 사법

운용의 역할입니다.

독립적인 법조인들은 인권보호에 있어 본질적인 역할을 합니다. 그들은 권리가 침해된

개인이 효율적으로 국내법적 구제수단을 취할 수 있도록, 그리고 국제인권법이 적절하게 한

국가의 사법과정에서 집행되도록 담보하는 국제인권법의 수호자입니다. 이러한 책임을 보다

수월하게 이행하기 위해서는 법관, 검사, 그리고 변호사들이 주요한 국제적 법문서에 의해

정립된 인권 기준에 대한 정보와 국제적인 또는 지역적인 감시기구에 의해 정립된 관련 법학

지식을 (자유로이) 이용할 수 있어야 합니다.

수년 동안 유엔 인권최고대표 사무실(인권고등판무관실. Office of the United

Nations High Commissioner for Human Rights, OHCHR)은 전 세계의 법관, 검사 그리고

변호사들을 다룬 프로젝트들, 그리고 사법 운용에 책임이 있는 직업군이 조직한 인권 향상에

목적을 둔 프로젝트들을 지원해왔습니다. 유엔의 인권교육 10개년 계획(1995~2004)의 기초

작업과 전문 협회와의 협력을 통해서 유엔 인권최고대표 사무실은 이와 관련된 기술적인 도

구들을 개발해내었습니다.

하나의 매뉴얼과 조력자(facilitator)를 위한 가이드로 구성된 “사법 운용에서의 인권”

(HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE)은 180여 개의 법률협회

와 법조인 조직으로 이루어진 주요한 국제 법률조직인 국제변호사협회(International Bar

Association, IBA)와의 합작으로 만들어진 결과물입니다. 이는 국제인권기준에 대한 종합적

1) 세계인권선언, 서문 세 번째 문단.

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서문

인 핵심 교육과정을 법률 전문가에게 제공하기 위하여 만들어졌습니다.

매뉴얼은 이용자에게 기초적인 국제인권법 정보와 국제적, 지역적 기구와 각 국의 국

내 법원의 판례법 정보를 제공합니다. 각각의 단원은 세부적인 인권법 영역을 다루고 있습니

다. 법조 직역의 본질상, 매뉴얼은 단체의 트레이닝 자료로도, 개별적 연구자료로도, 그리고

해석이나 법의 적용을 위한 참고자료로도 사용할 수 있는 등 다양한 용도로 사용될 수 있을

것입니다.

매뉴얼의 보조로서 트레이닝 담당자와 인사담당자가 워크숍이나 교육과정을 마련하는

데 있어 그 시작부터 끝까지 도움을 주는데 목적을 둔 조력자를 위한 가이드가 있습니다. 매

뉴얼의 각 단원마다 위 가이드는 예문, 연습문제, 사례연습과 역할극과 같은 트레이닝 보조

자료를 제공합니다. 가이드는 쌍방향 트레이닝 방식에 기초하고 있는데, 이는 학습자가 어떻

게 하면 국제적인 인권기준을 효과적으로 적용할 수 있는지에 대한 그룹스터디에 그들의 직

업적 전문성을 공헌할 수 있도록 적극적으로 참여를 장려하는 방식입니다.

매뉴얼과 가이드는 상당 정도 유연하게 이용할 필요가 있습니다. 비록 특정한 대상을

상대로 하는 것이지만, 가장 적당한 자료를 취사선택하여 사용하는 것도 필요할 것입니다.

프레젠테이션, 예문들, 사례연습과 역할극은 관련 법체계나 특정한 이슈를 다룰 때 상황에

맞게 수정, 변형할 필요가 있을 것입니다. 매뉴얼과 가이드를 이용하는 자와 교육과정의 참

가자들의 이용 편의를 위하여 두 가지 모두 전자자료 형태로도 제공 가능합니다.

‘사법 운용에서의 인권’은 OHCHR이나 IBA에서 주최하는 교육과정이나 워크숍 외에

도 법조인을 대상으로 하는 교육을 포함하는 모든 종류의 교육과정이나 워크숍에서 이용할

수 있도록 개발되었습니다. 기존 교육과정의 개선을 위하여, 미래의 법조인 양성의 예비과정

에도 그리고 전문가 협회의 지속적 교육 자료로 쓰기를 권장합니다.

본 자료의 이용자들의 개선점에 대한 건의나 자료에 대한 의견을 환영합니다. 피드백

은 매뉴얼과 가이드의 개정판에 고려될 것입니다. 당신의 의견을 다음의 주소로 보내주십시

오.

Manual on Human Rights for Judges, Prosecutors and Lawyers

xii Human Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

서문

Office of the United Nations High Commissioner for Human Rights

Palais des Nations

1211 Geneva 10

Switzerland

OHCHR은 본 자료와 동 자료에 기초한 자료들이 전 세계의 법관, 검사 그리고 변호사

들이 변화의 전도사가 되고 국제인권법 기준의 실질적인 정착에 직접적으로 공헌할 수 있도

록 이끌 것이라고 기대합니다.

제네바에서, 2002년 9월

xiiiHuman Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

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서 문

국제변호사협회

지난 50년 동안 국제변호사협회(IBA)는 개별 변호사뿐만 아니라 변호사협회 그리고

그들을 감독하는 법률협회의 국제적 대리인으로서 인정받아왔습니다. 180개의 회원조직은

모든 대륙에 흩어져 있으며 미국변호사협회, 독일연방변호사협회, 일본변호사협회연합, 짐

바브웨법률협회와 멕시코변호사협회를 포함합니다.

IBA는 전 세계의 시민들이 분쟁을 독립적인 사법부에 의하여 판결 받을 수 있는 기본

권과 법관과 변호사들이 간섭 없이 자유롭게 직무를 수행할 수 있는 환경이 보장되고 있다고

믿습니다.

1995년, IBA는 이런 사명을 다하기 위하여 명예로운 넬슨 만델라 재임기간에 인권연

구소(HRI)를 설립하였습니다. 인권연구소는 법조 직역에 종사하는 모든 회원들을 환영합니

다. 실제로, 가장 활발하게 참여하는 대다수의 회원들은 인권법을 그들의 일상생활에서 활

용하고 있지는 않으나, 인권연구소의 회원으로서 그들은 법조계의 독립을 지원하는데 공헌

하고 있습니다. 이러한 헌신을 공고히 하기 위하여 현재의 매뉴얼과 조력자를 위한 가이드가

계획되었고, 제작되었으며, (법조인들은) 이에 따르고 있습니다.

많은 국가의 전통적인 법조 트레이닝조차도 비교법적·국제법적 고려를 간과한 채 이

루어지는 경향이 있어 법관들과 변호사들은 종종 국제인권규범, 국제적 감시기구와 지역 법

원의 각종 판결·결정의 획기적이고 종합적인 발전을 인식하지 못하는 경우를 발견하게 됩

니다. 국제인권법의 근본적인 문제는 규범이 많은 이들에게 알려져 있지 않은 점이지 국내

법률시스템에의 적용 가능과 불가능의 문제가 아닙니다!

그럼에도 불구하고, 법조인들과 사법부는 법의 지배에 기초한 시민사회의 발전을 지원

해야 한다는 무언의 도덕적 의무를 지고 있고, 보다 현실적인 측면에서 법관과 변호사는 정

기적인 전문 프로그램을 통해 교육적, 실무적 숙련도를 유지할 직업적인 책임이 있습니다.

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국제적, 지역적 인권조약과 발전하는 법학은 국제법과 국제원칙을 반영하고, 법해

석과 법관이 상충하는 이익 가운데 선택을 하는데 있어 극도의 중요성을 지닙니다.

매뉴얼은 실무가가 인권법과 규약을 숙지할 수 있도록 보장하고, 현실로 준수하는 것

을 지원하기 위한 것입니다. 인도의 전 법무부장관이었던 Justice Bhagwati가 언급한 바와

같이 국제인권규범은 그것이 활력 있고 의미 있는 것이 되도록 법관과 변호사가 그들의 삶을

헌신하여 전 인류를 위해 정력과 혼신의 힘을 다하여 규범의 보편성을 살아있는 현실로 만들

지 않는 이상 무의미할 뿐입니다.

유엔 인권최고대표 사무실과 합작하여 매뉴얼과 가이드의 초안을 작성할 수 있도록 컨

설턴트 고용 및 재정적 지원을 하고, 저명한 법학자들로 구성된 국제적인 위원회가 검토하고

코멘트를 할 수 있도록 실무적인 지원을 할 수 있게 되어 매우 기쁩니다.

매뉴얼을 통해 법관과 변호사는 국제적·지역적인 인권법과 이의 현실적인 적용을 접

하고 그에 대한 이해를 깊이 할 수 있을 것입니다. 개괄적인 매뉴얼과 이에 부속한 위 가이드

는 법관과 변호사 그리고 검사에게 구체적인 법률 자료와 손쉽게 모든 판결·결정에 사용될

수 있는 계획된 트레이닝 프로그램을 제공합니다.

인권연구소의 목표는 법의 지배와 인권을 촉진하고 보호하는 것입니다. 우리는 이러한

목표들을 재판 참관, 중재 그리고 법률전문가를 통한 법체계의 사실조사를 통해 달성합니다.

우리는 전 세계에 걸쳐 숙련된 변호사들을 풍부한 자원으로 하여 법의 지배를 가능하게 하거

나 공고히 하는 구조적인 기반을 마련하기 위하여 교육적인 지원과 장기적으로 실용적인 지

원도 제공하고 있습니다.

매뉴얼과 가이드의 출판이 인권연구소가 트레이닝 프로그램을 지치지 않는 활기로 계

속해 나갈 수 있게 할 것입니다. 우리는 변호사협회 및 법률협회와 긴밀히 협력하여 출판물

을 각국의 변호사와 법관 그리고 검사들에게 제공할 수 있도록 할 것입니다.

우리는 마음에서부터 우러나오는 감사를 지속적인 성원을 아끼지 않은 유엔 인권최고

대표 사무실에 돌리고 싶습니다. Anna-Lena Svensson-McCarthy에게 매뉴얼과 가이드

의 초안을 작성하는데 있어 그녀의 노고와 프로정신을 치하하고, IBA의 검토위원회의 회원

들에게 값진 노력에 대하여 감사의 말씀을 전하며, 그리고 마지막으로 매뉴얼 작성의 초창

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기부터 그 발전을 장려했던 현 영국 법무장관이며, 前 IBA 인권연구소의 공동의장인 Lord

Goldsmith QC에게 감사의 말씀을 드립니다.

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감사의 말

유엔 인권최고대표 사무실은 이 매뉴얼과 조력자를 위한 가이드를 작성하는 데 유용한

조언, 제안, 도움을 준 많은 개인과 단체들에게 감사의 말을 전하고 싶다. 특히 자료를 개발

하고 수집할 최초의 책임을 맡은 Anna-Lena Svensson-McCarthy의 역할에 감사를 표하

고자 한다.

이 프로젝트를 수행하는 데 있어 유엔 인권최고대표 사무실과 세계변호사협회의 파

트너쉽은 Lord Goldsmith QC(전 세계변호사협회 인권연구소 공동의장)와 현 공동의장

Ramón Mullerat OBE, Fali Nariman(인도변호사협회 회장)의 도움과 격려에 힘입은 바

가 크다. 세계변호사협회 평론위원회는 논평과 조언을 제공하였다. 위원회 대표는 Dr.

Phillip Tahmindjis(오스트레일리아 퀸스랜드 공과대학 법학부 부교수, 세계변호사협회 인

권연구소 이사)이다. 논평을 한 위원은 Michael Kirby 판사(오스트레일리아 고등법원),

Finn Lynghjem(노르웨이), Emilio Cardenas 대사(아르헨티나, 세계변호사협회 부회장),

Christof Heyns 교수(프레토리아대학교), Carole Peterson 부교수(홍콩대학교)이다. 또한,

Kazuyuki Azusawa(세계변호사협회 인권연구소 부의장, 일본변호사협회연합 국제인권위원

회 부회장)도 논평을 제공하였다.

다음 기관은 유용한 정보와 조언을 제공하였다. Adalah - 이스라엘에 소재한 아랍 소

수자 권익센터(The Legal Center for Arab Minority Rights), 국제사면위원회(Amnesty

International), 영연방 사무국, 유럽평의회, 남아프리카 변호사 일반이사회(the General

Council of the Bar of South Africa)(남아프리카 요하네스버그), 미주인권위원회와 미주

인권재판소 사무국, 국제법률가위원회, 오스트레일리아 법률이사회 사무국, 뉴질랜드 인

권위원회, 국제형법개혁협회(Penal Reform International), 세계고문방지기구(World

Organization Against Torture). Michael Birnbaum, Coleman Ngalo, Bernhard Schl

ter, Dinah Shelton 교수, Richard Stainsby, David Weissbrodt도 도움을 주었다.

유엔 내에서, 경제사회국/여성발전부, 난민고등판무관실, 유엔 봉사단, 인권최고대표

사무실 스태프들이 도움을 주었다.

xviiHuman Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

감사의 말

이 매뉴얼, 가이드의 개념화와 초안 작성은 Marcia V.J. Kran(캐나다 브리티시콜

롬비아대학교 법학부 부교수)의 감독 하에 다수의 연구원, 박사 과정 학생들을 비롯한 학

생들의 도움으로 1996/97에 작성된 초기 초안의 혜택을 입었다. Lucien Beaulieu 판

사, P.N. Bhagwati 판사, Param Cumaraswamy(법관과 변호사의 독립에 관한 특별보

고관), Matar Diop, Anil Gayan, Louis Joinet, Michael Kirby 판사, Scott Leckie,

William McCarney, Manfred Nowak, Craig Scott, Soli Sorabjee, Jean Tr panier,

Rick Wilson 등이 위 초안의 작성자이다. 세계법관협회(the International Association

of Judges), 세계소년법원법관협회(the International Association of Juvenile Court

Judges), 세계변호사협회, 국제법률가위원회, 국제노동기구 국제트레이닝센터, 세계여성법

관재단, 유엔 범죄 예방과 범법자 처우를 위한 라틴아메리카 연구소도 도움을 주었다.

xviii Human Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

서문

제1장 국제인권법과 법률가의 역할: 개관

1. 들어가며 ······································································ 4

2. 국제인권법의 유래, 의미 및 범위 ······················································· 4

2.1 유엔헌장과세계인권선언·································································· 4

2.2 인권의윤리적측면······································································ 6

2.3 인권과인권이국내적및국제적평화,안보및개발에미치는영향································· 7

2.4 법의연원(淵源)·········································································· 8

2.4.1 국제조약········································································10

2.4.2 국제관습법······································································ 11

2.4.3 국가들공동체에의하여인정된법의일반원칙··········································15

2.4.4 법칙결정의보조수단·····························································15

2.5 국제인권법과국제인도법:공동관심사와기본적차이···········································16

2.6 국제인권조약에대한유보와해석적선언····················································17

2.7 권리행사의한계········································································20

2.8 국제적법적의무로부터의이탈·····························································21

2.9 인권침해에대한국가의국제적의무························································22

3. 기업과 인권 ······································································25

4. 국내 차원의 국제인권법 ·································································26

4.1 국제법의국내법체계로의수용····························································26

4.2 국내법원에서의국제인권법의적용:몇가지사례··············································28

5. 인권의 이행에 있어서의 법률가의 역할 ················································· 31

6. 맺음말 ····································································· 32

제2장 주요한 보편적 인권문서들과 그 이행을 위한 메커니즘

1. 들어가며 ····································································· 36

1.1 이장의범위············································································36

1.2 국제조약에기초한통제메커니즘···························································36

1.3 시민적및정치적권리,그리고경제적,사회적및문화적권리···································38

2. 주요한 유엔 인권조약들 및 그 이행 ··················································· 39

2.1 시민적및정치적권리에관한국제규약(1966년)및두의정서(1966년,1989년)·····················39

2.1.1 당사국의약속···································································39

2.1.2 인정된권리·····································································41

2.1.3 권리의행사에대한허용가능한제한················································44

2.1.4 법적의무로부터허용가능한이탈···················································45

목 차

xixHuman Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

2.1.5 이행메커니즘···································································48

2.2 경제적,사회적및문화적권리에관한국제규약(1966)··········································49

2.2.1 당사국의약속····································································50

2.2.2 인정된권리·····································································51

2.2.3 권리에대한허용가능한제한······················································52

2.2.4 이행메커니즘···································································53

2.3 아동의권리에관한협약및두선택의정서(2000)·············································54

2.3.1 당사국의약속····································································55

2.3.2 인정된권리·····································································56

2.3.3 권리의행사에있어서허용가능한제한··············································59

2.3.4 이행메커니즘···································································59

2.4 집단살해죄의방지와처벌에관한협약·······················································60

2.4.1 당사국의약속···································································60

2.4.2 협약의법적범위·································································61

2.4.3 국제범죄:최근의법적발전························································61

2.5 모든형태의인종차별철폐에관한국제협약···················································63

2.5.1 당사국의약속···································································64

2.5.2 보호되는비차별분야······························································65

2.5.3 이행메커니즘···································································66

2.6 고문및그밖의잔혹한,비인도적인또는굴욕적인대우나처벌의방지에관한협약··················68

2.6.1 당사국의약속····································································68

2.6.2 협약의법적범위·································································68

2.6.3 이행메커니즘····································································70

2.7 여성에대한모든형태의차별철폐에관한협약················································73

2.7.1 당사국의약속····································································73

2.7.2 협약의구체적인법적범위·························································74

2.7.3 이행메커니즘···································································75

3. 유엔 총회에서 채택된 그 밖의 문서들 ·················································· 77

3.1 종교또는신념에근거한모든형태의불관용및차별철폐에관한선언····························77

3.2 피구금자의처우를위한기본원칙···························································78

3.3 모든형태의억류·구금하에있는모든사람의보호를위한제원칙······························78

3.4 자유를박탈당한소년의보호를위한유엔규칙················································79

3.5 고문및기타잔혹한,비인도적인또는굴욕적인대우나처벌로부터피구금자및피억류자를

보호하기위한,보건요원,특히의사의역할에관한의료윤리원칙·································79

3.6 법집행공무원들을위한행동강령···························································80

3.7 비구금조치에관한유엔최저기준규칙······················································80

3.8 소년비행방지를위한유엔가이드라인······················································80

3.9 소년사법의운용을위한유엔최저기준규칙··················································81

3.10 범죄및권력남용의피해자를위한정의에관한기본원칙선언····································81

3.11 강제적실종으로부터의모든사람의보호에관한선언··········································82

3.12 보편적으로승인된인권및기본적자유를촉진하고보호하기위한개인,집단및

사회기관의권리및책임에관한선언························································82

4. 범죄의 예방 및 범죄자의 처우에 관하여 유엔 회의에서 채택된 문서들 ······················· 83

5. 인권 감시를 위한 유엔의 협약 이외 메커니즘 ············································ 84

xx Human Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

5.1 특별절차Ⅰ:주제별및국가별특별절차······················································84

5.2 특별절차Ⅱ:1503진정절차·······························································86

6. 맺음말 ····································································· 87

제3장 주요한 지역적 인권문서들과 그 이행을 위한 메커니즘

1. 들어가며 ····································································· 92

2. 아프리카 인권조약들과 그 이행 ······················································ 92

2.1 인간과인민의권리에관한아프리카헌장····················································92

2.1.1 당사국의약속····································································94

2.1.2 인정된개인및집단의권리························································94

2.1.3 개인의의무·····································································95

2.1.4 권리의행사에서허용가능한제한···················································96

2.1.5 법적의무로부터의이탈····························································96

2.1.6 이행메커니즘···································································97

2.2 아동의권리와복지에관한아프리카헌장·····················································99

2.2.1 당사국의약속···································································100

2.2.2 인정된권리·····································································100

2.2.3 아동의의무····································································101

2.2.4 이행메커니즘···································································101

3. 미주인권조약들과 그 이행 ························································· 102

3.1 미주인권협약···········································································102

3.1.1 당사국의약속···································································103

3.1.2 인정된권리····································································105

3.1.3 권리의행사에서허용가능한제한··················································107

3.1.4 법적의무로부터허용가능한이탈··················································110

3.1.5 이행메커니즘··································································111

3.2 고문의방지와처벌을위한미주협약························································114

3.2.1 협약의범위····································································114

3.2.2 당사국의약속··································································115

3.2.3 이행메커니즘··································································115

3.3 인간의강제적실종에관한미주협약························································115

3.3.1 협약의범위····································································116

3.3.2 당사국의약속···································································116

3.3.3 이행메커니즘····································································117

3.4 여성에대한폭력의방지,처벌,근절에관한미주협약·········································117

3.4.1 협약의범위····································································118

3.4.2 당사국의약속···································································118

3.4.3 이행메커니즘···································································118

4. 유럽인권조약들과 그 이행 ························································· 119

4.1 유럽인권협약및제1,4,6,7추가의정서·····················································119

4.1.1 당사국의약속··································································120

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4.1.2 보장된권리····································································121

4.1.3 권리의행사에대한허용가능한제한················································123

4.1.4 법적의무로부터허용가능한이탈··················································125

4.1.5 이행메커니즘··································································126

4.2 유럽사회헌장및그의정서·······························································128

4.2.1 당사국의약속··································································128

4.2.2 인정된권리····································································129

4.2.3 권리의행사에대한허용가능한제한···············································130

4.2.4 법적의무로부터허용가능한이탈··················································130

4.2.5 이행메커니즘··································································131

4.3 1996년개정된유럽사회헌장······························································132

4.4 고문및비인도적인또는굴욕적인대우나처벌의방지를위한유럽협약···························133

4.4.1 당사국의약속과감시메커니즘····················································134

4.5 소수민족의보호를위한기본협약··························································135

4.5.1 당사국의약속··································································136

4.5.2 권리의행사에있어서허용가능한제한·············································137

4.5.3 이행메커니즘··································································137

5. 맺음말 ···································································· 138

제4장 법관, 검사, 변호사의 독립과 공정성

1. 들어가며 ···································································· 143

2. 인권 기준을 비롯한 법의 지배를 받드는 법관, 검사와 변호사의 역할 ························ 143

3. 법률가들의 독립과 공평성에 대한 도전 ················································ 144

4. 국제법과 사법부의 독립 및 공평 ···················································· 146

4.1 적용국제법············································································146

4.2 1985년사법부의독립에관한기본원칙······················································147

4.3 독립과공평의개념-관련성및기본적차이점···············································148

4.4 기관으로서의독립의개념································································149

4.4.1 행정상문제에있어서의독립·······················································149

4.4.2 재정적독립·····································································149

4.4.3 판결의독립·····································································150

4.4.4 사법적권한·····································································151

4.4.5 공정한재판절차를확보하고이유를붙인결정을행하는권리및의무·····················151

4.5 개인적독립의개념······································································152

4.5.1 임명···········································································152

4.5.2 재직기간의보장·································································157

4.5.3 금전적보장·····································································158

4.5.4 승진···········································································159

4.5.5 책임···········································································160

4.5.6 표현과결사의자유·······························································164

4.5.7 연수와교육·····································································164

4.5.8 공정한재판절차를보장하고결정에이유를명시하여야할권리와의무····················165

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4.6 공평성의개념··········································································167

4.7 군사법원과그밖의특별법원또는재판소···················································172

5. 국제법과 검사의 독립 ······························································ 182

5.1 1990년검사의역할에관한지침···························································182

5.2 직업상자격요건········································································182

5.3 직무상의지위와근무조건································································183

5.4 표현과결사의자유······································································183

5.5 형사절차에서의역할·····································································183

5.6 기소의대체수단········································································185

5.7 책임 ··············································································185

6. 국제법과 변호사의 독립 ···························································· 185

6.1 적용되는국제법········································································185

6.2 의무와책임············································································186

6.3 변호사의직무수행을위한보장····························································187

6.4 변호사와기본적인자유··································································189

6.4.1 법률직에종사하기위한행정부의허가···············································189

6.4.2 평화적집회에대한권리··························································190

6.4.3 결사의자유에대한권리··························································191

6.4.4 표현의자유에대한권리··························································192

6.5 직무상의규율강령······································································193

7. 맺음말 ···································································· 194

제5장 인권과 체포, 미결구금과 행정적 구금

1. 들어가며 ···································································· 202

2. 합리적 근거 없는 체포와 구금: 고질적 문제 ··········································· 202

3. 인간의 자유와 안전에 관한 권리: 법적 보호의 적용 영역 ································· 203

3.1 보편적법적책임:모든국가는법의구속을받는다.···········································203

3.2 개인적안전의개념:국가의행위책임······················································203

4. 법이 허용하는 체포와 구금 ························································· 205

4.1 법문언··············································································205

4.2 적법성과자의성의개념:그의미···························································206

4.2.1 확인되지않는구금,납치그리고비자발적실종·······································211

4.3 유죄판결후의구금·······································································214

4.4 법원의적법한명령또는법률에규정된어떤의무의이행을확보하기위한명령에

따르지않은데대한체포와구금···························································215

4.5 범법행위를하였다는합리적의심에근거한구금··············································215

4.5.1 “합리성”의의미··································································216

4.6 도주를방지하기위한구금································································217

4.7 행정적구금············································································218

4.7.1 교육적감독목적을위한자유박탈··················································219

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4.7.2 정신건강을이유로한자유의박탈··················································219

4.7.3 비호신청인의자유박탈,강제퇴거및범죄인인도목적의자유박탈·······················223

4.7.4 예방적구금과공공질서를이유로한구금············································224

4.8 체포및구금이유와범죄혐의를신속하게고지받을권리·······································225

4.9 신속하게법관또는기타사법관헌에게회부될권리···········································229

4.9.1 합법적인결정기관·······························································235

5. 합리적인 기간 내에 재판을 받거나 아니면 불구속 상태에서 재판을 받을 권리 ················ 236

5.1 “합리적인기간”의의미···································································236

5.2 미결구금의대안:재판에대한출석보증·····················································242

6. 법원에 의하여 신속히 또는 지체 없이 구금의 적법성이 심사되도록 요구할 수 있는 권리 ······· 244

6.1 이러한요건을충족시키는법적절차························································246

6.2 “신속하게”와“지체없이”의개념···························································254

7. 변호사와 접견하고 변호사의 조력을 받을 권리·········································· 257

8. 불법구금을 당한 경우에 보상을 받을 권리 ············································· 258

9. 외부와 단절된 구금 ································································ 259

10. 맺는말 ·····································································260

제6장 공정한 재판을 받을 권리: 1부 - 수사에서 재판에 이르기까지

1. 들어가며 ···································································· 266

2. 공정한 재판을 받을 권리의 효과적인 보장: 전 세계적인 과제 ······························ 266

3. 법 문언 ···································································· 267

4. 법 앞의 평등권 및 법 앞에 동등한 취급을 받을 권리 ····································· 268

5. 무죄추정의 권리: 범죄의 혐의 단계부터 유·무죄 결정시까지의 전반적인 보장 ··············· 270

6. 수사과정에서의 인권 ······························································· 275

6.1 개인의사생활,주거그리고통신을존중받을권리·············································275

6.1.1 감청···········································································276

6.1.2 수색···········································································279

6.1.3 통신의제한····································································280

6.2 인도적인대우를받을권리및고문을받지않을권리··········································283

6.3 이해할수있는언어로혐의내용(기소내용)을고지받을권리····································285

6.4 법적조력을받을권리···································································289

6.5 자신에게불리한진술을강요당하지않을권리/묵비권··········································295

6.6 심문을기록으로남길의무································································299

6.7 방어를준비하기위한충분한시간과편의를제공받을권리·····································300

7. 맺음말 ···································································· 305

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제7장 공정한 재판을 받을 권리: 2부 - 재판에서 최종 판결까지

1. 들어가며 ···································································· 311

2. 법적 조항 ···································································· 311

3. 재판 중의 인권 ··································································· 312

3.1 법률에의하여설립된권한있는독립적이고공평한법원에서재판받을권리······················312

3.2 공정한재판을받을권리··································································312

3.2.1 법원또는재판소에접근할권리····················································315

3.2.2 무기대등과당사자주의에대한권리·················································317

3.2.3 증인구금·······································································320

3.2.4. 법관의배심원지도·······························································321

3.3 공개재판을받을권리····································································322

3.3.1 판결공개에관한권리·····························································326

3.4 “부당하게지체됨이없이”또는“합리적인기간내에”재판받을권리······························328

3.5 본인이직접또는자신의선택에따른변호사를통해변호할권리································333

3.5.1 사형선고가가능한사건에서효과적인법적조력을받을권리····························337

3.5.2 무료로법률구조를받을권리·······················································341

3.5.3 변호사와자유로운소통을할권리··················································344

3.6 재판에출석할권리······································································345

3.6.1 궐석재판·······································································345

3.7 자기에게불리한진술또는자백을강요받지않을권리·········································347

3.7.1 불법적수단·처우를통해취득한증거의사용금지····································349

3.8 증인을소환하고,신문하며,신문받도록할권리···············································351

3.8.1 익명의증인·····································································355

3.9. 무료로통역인의조력을받을권리··························································358

3.10 이유가담긴판결을받을권리·····························································360

3.10.1재판의판단이유의결여및사형이선고된사례들·······································363

3.11 소급입법으로부터의자유/죄형법정주의원칙·················································364

3.12 일사부재리또는이중위험의금지원칙······················································366

4. 처벌의 제한 ···································································· 371

4.1 가벼운형벌의이익을누릴권리····························································371

4.2 국제적법적기준과의일치·································································371

4.2.1 체형···········································································372

4.2.2 사형제도·······································································374

5. 상소권 ···································································· 376

5.1 충분한심리를받을권리··································································378

5.2 판결문의이용가능성·····································································379

5.3 재판기록··············································································379

5.4 증거의보존············································································379

5.5 법률조력을받을권리···································································380

6. 오심의 경우 보상을 받을 권리 ······················································· 382

7. 공정한 재판을 받을 권리와 특별재판소 ················································ 382

xxvHuman Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

8. 공공의 비상사태시에 공정한 재판을 받을 권리·········································· 384

9. 맺음말 ···································································· 386

제8장 자유를 박탈당한 사람을 보호하기 위한 국제법상 기준

1. 들어가며 ···································································· 392

1.1용어의사용··············································································393

2. 고문 및 그밖의 잔혹한, 비인도적인 또는 굴욕적인 대우나 처벌의 금지 ······················ 393

2.1 머리말 ··············································································393

2.2 국가의법적책임········································································394

2.3 고문과잔혹한,비인도적인또는굴욕적인대우또는처벌의개념:정의및이해····················398

2.3.1 고문으로서의강간·······························································401

2.3.2 미결구금자·수형자의취급························································404

2.3.3 체형···········································································408

2.3.4 의학적또는과학적실험··························································410

2.4 고문,법집행관,보건인력그리고검찰·······················································410

3. 미결구금자와 수형자의 구금 장소 및 등록에 관한 법적 요건 ······························ 412

3.1 모든구금장소의공인(公認)······························································412

3.2 피수감자·수형자의등록·································································414

4. 미결구금 및 수형의 조건 ··························································· 417

4.1 미결구금및수형을지배하는기본원리·····················································417

4.2 거주설비··············································································419

4.2.1 유형별격리·····································································421

4.3 개인위생,급식,건강과의료서비스·························································422

4.4 종교 ··············································································430

4.5 여가활동··············································································431

4.6 독방수용··············································································432

4.6.1 외부와단절된구금·····························································434

5. 외부와의 교통 ···································································· 438

5.1 가족구성원및친구와의교통:접견및통신··················································438

5.1.1 미결구금자와수형자를접견할접견자의권리·········································441

5.2 변호사와의교통:접견및통신·····························································443

6. 구금 장소에 대한 사찰 및 진정절차 ··················································· 449

6.1 구금장소에대한사찰···································································449

6.2 진정절차(전술한2.2.“국가의법적책임”참조)··············································450

7. 자유를 박탈당한 사람에 대한 불법적인 처우의 방지와 구제에 있어서 법관, 검사, 변호사의 역할 · 453

8. 맺음말 ···································································· 455

xxvi Human Rights in the Administration of Justice A Manual on Human Rights for Judges, Prosecutors and Lawyers

제9장 사법 운용에서의 비구금 조치의 이용

1. 들어가며 ···································································· 461

1.1 비구금조치와도쿄규칙의목적···························································461

2. 용어의 정의 ···································································· 462

2.1 “비구금조치”의개념····································································462

2.2 “범죄자”의개념·········································································463

2.3 “권한있는기관”의개념··································································463

3. 비구금 조치와 관련된 일반 원칙들 ··················································· 463

3.1 비구금조치의기본적인목적······························································463

3.2 비구금조치의범위······································································465

3.2.1 비구금조치의일반적인범위·······················································465

3.2.2 차별의금지·····································································466

3.2.3 적용에서의유연성·······························································467

3.3 법적보호장치··········································································468

3.3.1 법률유보의원칙·································································468

3.3.2 비구금조치의적용기준과재량의필요성············································469

3.3.3 동의요건·······································································470

3.3.4 심사를받을권리·································································470

3.3.5 비구금조치부과의제한··························································472

4. 사법절차상 각 단계에서 비구금 조치의 선택 ··········································· 473

4.1 재판전단계에서비구금조치·····························································474

4.2 재판및판결선고단계에서의비구금조치···················································475

4.3 판결선고이후단계에서의비구금조치······················································477

5. 비구금 조치의 집행 ································································ 479

5.1 비구금조치에대한감독··································································479

5.2 비구금조치의기간···································································�