Juvenile transfer discretion bounded by equality with co-defendants

1. 01Question

   When a court trying a juvenile defendant decides whether there are reasons for a juvenile disposition under Article 50 of the Juvenile Act, is that a matter of the judge's discretion, and how must the court judge it, individually for each juvenile and with regard to co-offenders, before the limits of that discretion are exceeded?

2. 02Holding

   It is a matter of the judge's discretion. But the Court held that Article 1 of the Juvenile Act, which aims at helping juveniles grow into healthy adults, sets a limit on that discretion: weighing the juvenile's age, conduct, intelligence, family and other surroundings, relationship with the victim, school life, friendships, prior delinquency and protective measures, the gravity of the offence, the conduct after it, the harm of excessive punishment, balance with the treatment of co-offenders, the victim's feelings and society's sense of anxiety, punishment and justice, and making that judgment separately for each juvenile. In a joint-offender case the court must hold a faithful hearing on the relationship with the co-offenders, motive and circumstances of joining, degree of participation, concrete acts, sharing of benefits, repentance, the co-offenders' ages, conduct, intelligence and prior records, their guardians' will and ability to protect them, and their school life and friendships, so that no result sharply at odds with fairness and balance arises; a judgment plainly outside those limits is not permitted.

   Summary of the holding, verbatim

   그러므로 ‘보호처분에 해당할 사유’에 대한 판단이 법관의 재량에 맡겨져 있다고 하더라도 거기에는 앞서 본 바와 같이 소년의 건전한 성장이라는 소년법의 지도이념과 보호처분의 목적에 따른 재량의 한계가 있고, 따라서 그 재량의 한계를 현저하게 벗어난 판단은 허용되지 아니한다고 할 것이다.

   Unofficial English translation

   Therefore, even though the determination of 'grounds falling under a protective disposition' is left to the discretion of the judge, there are limits to such discretion, as we have seen above, arising from the guiding principle of the Juvenile Act, namely the sound growth of juveniles, and the purpose of a protective disposition, and accordingly, it must be said that a determination that conspicuously exceeds the limits of such discretion is not permissible.

3. 03Disposition

   Reversed and remanded Stated in the decision

   원심결정을 파기하고, 사건을 서울고등법원에 환송한다.

   Unofficial English translation

   The order of the court below is reversed and the case is remanded to the Seoul High Court.

4. 04Form of the test

   Circumstances weighed Stated in the decision

   범죄 정상의 경중, 범행 후의 정상, 과형에 의한 폐해·영향, 공범자의 처우와의 균형, 피해감정, 사회의 불안·처벌감정·정의관념 등을 종합하여 보호처분에 해당할 사유를 판단하여야 하고

   Unofficial English translation

   the grounds falling under a protective disposition must be determined by comprehensively taking into consideration the gravity of the circumstances of the crime, the circumstances after the commission of the crime, the harms and effects of an excessive sentence, the balance with the treatment of the accomplice, the victim's feelings, and society's sense of anxiety, desire for punishment, and sense of justice, etc., and

5. 05Factors

   • 소년의 나이, 성행, 지능, 부모의 보호의지 및 보호능력 등의 주변 환경, 피해자와의 관계 및 학교생활, 교우관계, 비행·보호 처분경력, 범죄 정상의 경중, 범행 후의 정상, 과형에 의한 폐해·영향, 공범자의 처우와의 균형, 피해감정, 사회의 불안·처벌감정·정의관념 등을 종합하여
   • 그러한 판단은 소년 한 사람 한 사람에게 개별적으로 이루어져야 한다
   • 소년과 공범들의 관계, 공범으로 가담한 동기와 경위, 가담 정도, 구체적인 가담 행위와 그 태양, 범행으로 얻은 이익의 분배 여부와 그 정도, 범행 후의 반성 태도,
   • 공범들의 각 나이와 성행, 지능, 공범 간 범죄전력 및 비행전력의 차이 여부, 공범들의 각 부모 등 보호자의 보호의지 및 보호능력 등의 주변 환경, 공범들 각자의 학교생활 및 교우관계 등에 대한
   • 법정형이 높고 죄질이 나쁜 중범죄의 경우 소년과 공범들 사이의 형사처분 또는 보호처분의 처우에 있어 형평성과 균형에 현저히 반하는 결과를 초래하지 않도록 충실한 심리를 도모할 필요성이 더욱 크다

   Unofficial English translation

   • Taking into consideration comprehensively the juvenile's age, conduct, intelligence, the surrounding circumstances such as the parents' will and ability to protect, the relationship with the victim, school life, peer relationships, records of delinquency and protective dispositions, the gravity of the circumstances of the crime, the circumstances after the commission of the crime, the harms and effects of an excessive sentence, the balance with the treatment of the accomplice, the victim's feelings, and society's sense of anxiety, desire for punishment, and sense of justice, etc.

   • Such determination must be made individually for each and every juvenile

   • the relationship between the juvenile and the accomplices, the motive and course of participation as an accomplice, the degree of participation, the specific acts of participation and the manner thereof, whether and to what degree the profits gained from the crime were distributed, the attitude of repentance after the commission of the crime,

   • with respect to each accomplice's age, conduct, and intelligence, whether there are differences in criminal records and records of delinquency among the accomplices, the surrounding circumstances such as the will and ability of each accomplice's parents or other guardians to protect, and each accomplice's school life and peer relationships, etc.,

   • in the case of a serious crime for which the statutory penalty is high and the nature of the offense is bad, the need to pursue a faithful trial is even greater so as not to bring about a result conspicuously contrary to equity and balance in the treatment by criminal punishment or protective disposition between the juvenile and the accomplices

6. 06Relation to precedent

   Follows earlier decisions Stated in the decision

   대법원 2003. 4. 25. 선고 2003도29 판결, 대법원 2009. 11. 26. 선고 2009도9416 판결, 대법원 2021. 5. 28. 자 2021모978 결정

   Unofficial English translation

   Supreme Court Decision 2003Do29 decided April 25, 2003, Supreme Court Decision 2009Do9416 decided November 26, 2009, Supreme Court Decision 2021Mo978 decided May 28, 2021

   Decisions referred to

   대법원 2003. 4. 25. 선고 2003도29 판결, 대법원 2009. 11. 26. 선고 2009도9416 판결, 대법원 2021. 5. 28. 자 2021모978 결정

7. 07Burden of proof

   Not addressed Not in the decision

8. 08Open question and revisit condition

   Without a rational reason, how great a gap between the criminal punishment given to a co-offender and the protective measure given to a juvenile is a result sharply at odds with fairness and balance?

   The outcome of Supreme Court Decision 2023Do18873, the pending appeal of co-offender Non-Prosecutor 1, will show how the same offence was treated against this transfer decision. The remand ruling itself, and any amendment to Articles 1, 32, 50 or 58(2) of the Juvenile Act, would require this entry to be read again.

Read 2026-10-25 · Cross-read 2026-10-25. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.

Every entry is published only after all quotes have been matched character by character against the official text, and audited by an independent second reading from a different model family across all eight axes. Both agreed axes and text-grounded interpretive divergences are recorded openly. The ledger is a research record, not an assessment of the court or advice on any matter.