행형의 통제구조와 수형자의 기본권 제한 -누진처우와 준법서약을 중심으로-

Restrictions of Prisoners’ Constitutional Rights in Relation to the Control Mechanism of Prison

The purpose of this article is to explore the structure of prison control mechanism, in which the prisoners enjoy more freedom and favors at the cost of constitutional right of conscience. In the gradual treatment system many prisoners are induced to obey the prison rules and to show them- selves as more civilized, for the sake of more freedom. Moreover in the case of political offenders, they are-indirectly-forced to submit the written oath of law-observance in order to enter into the gradual treatment system. If they deny to submit the oath, they should be satisfied with the freedom of the lowest level all during prison life. Many of the favors that can be provided or expanded in the gradual treatment system-such as increase of visit times-are those which should be guaranteed as rights from Constitution. So the gradual treatment system is characterized as a mechanism of gradual release of the restric- tions of prisoners’ Constitutional rights. The restrictions laid on the life of prisoners are duplicated in connection with the oath system. This article analyzes the constitutionality of this gradual treatment system under the rule of law and criticizes this system under the principles of resocialization. It maintains that the current gradual treatment system is not constitutionally permissible because it functions as a pressure system through which the prisoner are forced to give up their constitutional right of conscience in order to enjoy more freedom and favors, more precisely, enjoy the gradual release of severe restrictions of their constitutional rights.