범죄인에 대한 교정의 이념인 교육형주의와 관계되는 모더니즘시대와 달리 교정복지주의 이념의 시대는 학제적인 포스터모더니즘의 성격을 내포하게 된다. 따라서 교정복지이념하에서의 사회봉사명령은 여가학, 사회복지, 사례관리, 형사정책, 심리학, 사회학, 제3섹터론, 교정복지 등 다양한 학제적 접근을 해야 한다. 그러나 사회봉사명령에 관한 국내의 선행연구들은 거의가 모더니즘적 성격에 기반한 형사정책학이나 형사법적 측면에서 획일적인 접근을 하여 오고 있으므로 본고에서는 그러한 선행연구들의 문제점에 대하여 학제적인 비판을 하고 정신적 사회봉사명령, 부정기형 사회봉사명령 등 기존의 논문에 없는 새로운 프로그램을 제시하여 사회봉사명령의 경로혁신적 접근을 시도하고자 한다.

지난 10년 동안 법원에서는 일반 형사사범에 대하여 집행유예 선고 시 많은 경우 사회봉사명령을 부과하여 외형적으로는 사회봉사명령제도가 정착되어 있는 것으로 보인다. 그런데 법원에서는 사회봉사명령을 어떠한 범죄에 대하여, 어느 정도, 어떠한 내용으로 부과하여야 하는 문제에 있어서 진지한 고민과 그 효과를 고려하기 보다는 과거의 관행대로 부과해온 경향이 적지 않아 보인다. 사회봉사명령제도의 발전은 집행하는 보호관찰소 만의 일이 아니고 부과하는 법원의 결정내용에 따라 이루어 질 수 있다. 법원에서는 우선 사회봉사명령 제도의 중요성을 인식하는 것이 중요하고, 그 부과 대상의 확대와 시간의 탄력적 부과를 통하여 종래의 관행에 안주하지 말고 피고인의 재사회화를 위한 과감한 부과결정을 하여야 할 것이다. 또한 봉사내용의 지정, 봉사기관에 대한 법률상의 감독권의 행사와 집행유예의 취소에 있어서도 사회봉사명령이 법원의 권한임을 인식하고 그 권한 행사에 주저하지 말아야 할 것이다.

Almost 20 years or more than 10 years have passed, Since Korea has received community service order into the juvenile justice system in 1988 and into the adult justice system in 1995. In this paper, the community service order system and practices during last 20 years are analysed and new directions of community service order in Korea are pursued. Recently Korean ministry of justice have started the missions to expand the scope of community service order and to diversify it. In this paper, the missions of the ministry of justice are also evaluated. With these purpose the contents of this paper is as follows; I. Introduction II. The realities of community service oder in Korea 1. The provisions on community service order in the statutes 2. The practices of community service order 3. evaluation III. The community service order as an alternative to detention at a workhouse 1. The fine system and the detention at a workhouse 2. The realities of the detention at a workhouse and its' problems 3. The plan of the ministry of justice 4. evaluation of the plan IV. The community service order as a independent disposition 1. Suggestions 2. The draft of the revised Juvenile Act 2007 3. evaluation V. Diversifying the community service order as a criminal sanction 1. The possibility of coexistence of probation order and community service order 2. The community service order as a condition of a suspended sentence 3. The community service order as a condition of parole 4. The community service order as a condition of a suspended prosecution VI. Conclusion

This article studied on the community service order in Korea. Community service order is designed to enable the government to save the budget by isolating criminals from the society, and this system protects less serious offenders from learning new skills for the new crimes from old offenders in the correctional office by being held together at one place. Community service order has well established. especially in recent years we attained a remarkable result by this system in the criminal policy. in practice, however, there are some problem to improve the use community order service system more efficiently, the most critical problem is about probation officers. to polish and enforce this system, we should train and develop the professional manpower, such as probation officers. The next problem is probation officer needs to develop community service order programs to give criminals more chance to participate in these programs positively. Finaly, our a warm affection for the criminals will lead community service order to the success.

This article studies community service order in terms of its objectives, functions, and legal basis. Compared with the cases of the advanced countries where community service order has well established, this study seeks to find problems and remedies to improve the use of community service order in Korea. The recommendations are 1) a fairer and more reasonable selection process for the candidates, 2) a development of better examination system to classify the offenders, 3) imposition of appropriate conditions and regulations, 4) A stricter penalties for the condition violators, 5) the encouragement of active participation of voluntary personnel.

The Introduction of the Criminal Treatment System such as the Community Service Order, can minimize the possibility of a second conviction by Criminals. The Community Service Order gives Criminals a chance to receive various treatment services, while living in the open society. The Community Service Order System is a meaningful method in the Criminal Policy because of its several social advantages; 1) It enables the government to save the budget by isolating Criminals from the society. 2) It protects less serious offenders from learning new skills for the new crimes from old offenders in the correctional institution by being held together at one place. Many nations have adopted this Community Service Order system and it became effective in their society. It is one of the most effective systems for correcting criminals. In Korea, this system has been evaluated as a revolutional system demonstrating the good results after being introduced in the amended Criminal Law on January 1st, 1997. However, this Community Service Order system needs to be supplemented byh the following points in order to serve society as a better correctional method for the Criminals. First, we should establish the purpose and the philosophy for enforcing the Community Service Order to Criminals. Second, we should educate and train the professional manpowers, such as probation officers, to polish and enforce this system. Third, we should not only make very clear and restricted punishments for the Criminals violating the Community Service Order, but also give a consideration to them for performing it positively. Finally, we should make it into a law to perform the Community Service Order within a certain period of time after receiving the order from the court, and the probation office should develop various Community Service Order programs to give criminals more chances to participate in these programs positively. Through these opportunities, we are able to make Criminals feel like a member of Society who should obey the law and public morals, and to assist them returning back to society as normal, not Criminal, with this Community Service Order system.

The Supreme Court of Korea pronounced that the court is not permitted to order the accused to make a donation and the like as the community service order of the Criminal Law. As there is no regulation about the definition, aim, types, contents, execution procedure of the community service order in the Criminal Law, This existing regulations about the community service order seem to be against the principle of “nulla poena sine lege." But the community service is a word with various meanings, and it is possible to give a concrete form to it by construction and let it be compatible with the principle. In my opinion to make restitution of an illegal profit, that is, make a donation can be a type of “the community service" of the Criminal Law for the following reason. 1) the community service means unpaid work or donation for the public weal in the common acceptation of the word. 2) the Probation Act doesn't provide that the court cannot order the accused to make a donation in the community service order(it just prescribes that the maximum execution limit is 500 hours when the court order the accused to provide unpaid work in the community service order). 3) the interpretation that making a donation can be a type of the community service not only closes a gap between imprisonment and suspended sentence, but also leads to a decision more harmonized with the accused's conditions. 4) the United Kingdom, United States of America, France, Germany, etc also try to interpret and manage the community service variously. The Supreme Court's decision conforms to the principle of “nulla poena sine lege” too rigidly. It’s a great pity that the Supreme Court's decision limit the types of community service.

The original ruling took into consideration the fact that the accused was a Chaebol owner and applied the concurrent offence punishment provisions and the discretionary sentence reduction system to lower the inferior limit of the penalty, and passed a suspended sentence. In order to divert public criticism, the original ruling also ordered a huge payment as a social contribution fund as a means of a community service order according to article 62-2 of the penal code. But the Supreme Court construed the concept of a community service order in a restrictive manner as ‘work or manual labor that can be imposed by the hour up to 500 hours.' As a result of this construction the Supreme Court reversed and remanded the original judgment that ordered the payment of a social contribution fund as a community service order. The original court maintained the suspended sentence by imposing a 300 hour community service instead of the original social contribution fund payment. Consequently the fairness of the examination of the offence was greatly impaired by lowering the inferior limit of the penalty to 3 years in a case in which the accused was proven guilty of 11 separate offences including one of which the penalty is stipulated as ‘life sentence or imprisonment for more than 5 years.' This ruling disclosed the problematic issues of the concurrent offence punishment provisions and the discretionary sentence reduction system that grant judges excessive discretion on weighing penalties. It is also legislatively meaningful that the case raised issues on introducing new forms of ‘suspended sentence conditional orders' such as fund payment orders or damage recovery orders.