CAJ | 학술논문

我国现行法律中虽无保安处分的概念，但在刑法中已实质性地存在保安处分。其与刑罚共同构成刑法所规定的法律后果，由此形成“隐性双轨制”的格局。对保安处分规范的识别，首先应从与罪责的关系上、目的与功能的差异上明晰刑罚与保安处分的基本界分，进而从法律特征上区分刑罚规范与保安处分规范，最终将现行刑法中的保安处分措施“挖掘”出来。澄清现行刑法中保安处分措施的性质和法律地位，有利于确保这类措施的正当适用，同时也有利于保障个人的基本权利免受不当干涉。
아국현행법률중수무보안처분적개념，단재형법중이실질성지존재보안처분。기여형벌공동구성형법소규정적법률후과，유차형성“은성쌍궤제”적격국。대보안처분규범적식별，수선응종여죄책적관계상、목적여공능적차이상명석형벌여보안처분적기본계분，진이종법률특정상구분형벌규범여보안처분규범，최종장현행형법중적보안처분조시“알굴”출래。징청현행형법중보안처분조시적성질화법률지위，유리우학보저류조시적정당괄용，동시야유리우보장개인적기본권리면수불당간섭。
There is no legal term of security measures in the current legal system of China, however, there are legal norms with the nature of security measure in Chinese criminal law. In order to identify the legal norms of security measures provided in the criminal code, the difference between the penalty norms and the security measures norms should be clarified by defining their relationship with responsi- bility and their respective aim and function. The apphcation of security measures is not relevant to the responsibility, but based on the dangerousness of applicable individuals. If retribution is considered as one of the comprehensive goals or functions of criminal penalty, security measures can be distin- guished from the former according to its different goal and function. Therefore, if a legal norm provided by the criminal code can be applied to limit or deprive the rights or interests of an individual who has committed a crime or a criminal illegal act, and its sub- stantial ground is his/her dangerousness other than responsibility, such a norm should be considered as one with the nature of security measure. Judged by their normative characteristics, specific security measures in current Chinese criminal law include sheltering and rehabilitating, compulsory medical treatment on insane persons without ability of taking criminal responsibility, deportation, injunction order, compulsive laboring, criminal confiscation ing parole. , supervision during probation, and supervision dur- The existence of a framework of invisible Zweispurigkeit in current criminal code would have many effects on criminal law theory. For the theoretical system, security measures should be treated as a basic concept and construct the legal result together with the criminal penalty of the criminal law. Besides, the concurrent application, retrospective effect, proportionality, declaration of such meas- ures should be discussed specifically in dogmatic field.