The electronic monitoring system in Korea has witnessed significant evolution and transformation since its inception in 2007. Notably, the probation system, introduced in July 1989, was extended to encompass all criminal offenders with the amendment of the Criminal Law in January 1997. The year 2008 marked a pivotal juncture for the probation system with the implementation of the electronic monitoring system, rendering it a topic of substantial societal interest and a central component of community-based rehabilitation efforts. To address the persisting issues of double jeopardy and excessive punishment inherent in the system, electronic monitoring, initiated in 2008, is currently undergoing assessment for its efficacy in reducing recidivism while expanding its applicability. Initially targeting sex offenders, its scope has progressively broadened to encompass abductors of minors, perpetrators of homicide, and robbery. In 2020, electronic monitoring extended not only to the existing four major specific criminal categories (sexual violence crimes, abduction of minors, homicide, and robbery) but also to parolees. Moreover, the implementation of a conditional bail system employing electronic devices indicates the widespread adoption of electronic monitoring throughout the criminal justice process.

  The Ministry of Justice has undertaken various measures, including revisions to the Electronic Device Attachment Act, to respond to public calls for enhanced recidivism prevention among electronic monitoring subjects. Consequently, conflicts are likely to escalate, concomitant with the growing challenges faced by probation officers in the field.

  In order to forestall any curtailment of the probation officers' exercise of authority and to effectively manage and supervise the subjects, it is imperative to delineate unequivocally the scope of guidance and supervision for compliance implementation through a comprehensive review of all pertinent legislation and a comparative analysis of international case studies. It is anticipated that such precise compliance measures will play a pivotal role in mitigating resistance and ensuing conflicts among electronic monitoring subjects during the supervision process.

① Enhancing Supervision in the Context of Electronic Monitoring Probation

  Unlike many other nations with established electronic monitoring systems, Korea's system exhibits distinctive characteristics concerning its introduction purpose, operational methodology, applicable crimes, and retroactive application. Furthermore, it is entering an era where the number of electronic monitoring cases is approaching 6,000. Notably, individuals subjected to electronic monitoring after completing their sentences, unlike parolees, have already served their terms. This poses the potential for an excessive burden on individual probation officers in terms of ensuring rigorous supervision while upholding the minimum human rights of these subjects, which may be an inherently unreasonable practical challenge.

  In this context, it is imperative to consider that specific compliance measures should be tailored to the unique characteristics of the defendant's crime and the risk of recidivism, as they are individually imposed at the time of sentencing. Given that a significant portion of electronic monitoring subjects who have completed their sentences are sexual assault offenders, explicit provisions for compliance related to sexual assault recidivism prevention within the Electronic Device Attachment Act become a necessity. These behavioral control requirements may encompass restrictions on residing near facilities frequented by children, employment involving minors, prohibition of the use of child sexual abuse material, limitations on internet access, and computer-based lie detector tests. It is crucial to acknowledge that these specific compliance measures targeting sex offenders have the potential to infringe upon the subjects' human rights more than required. Therefore, where feasible, these provisions should be clearly stipulated in legislation, facilitating a common understanding among the judiciary, probation officers, and relevant agencies regarding the imposition and supervision of compliance. Furthermore, special compliance measures for sex offenders should be individually imposed based on their need, in accordance with the principle of tailored treatment.

  Additionally, it is imperative to devise legal frameworks that allow for the differential application of compliance measures based on the risk level of electronic monitoring subjects. In the United States, comprehensive compliance measures are mandated by law for individuals subjected to lifetime electronic monitoring orders. Conversely, in Korea, while there exists a high risk of recidivism among electronic monitoring subjects post-sentence completion, it is pragmatically challenging to substantially heighten the supervision level for all. Consequently, it is advisable to consider measures such as differentiating compliance measures to strengthen behavioral control only in cases of recidivism during the electronic supervision period or serious compliance violations within the current supervision period. This may involve the active utilization of the existing one-on-one dedicated probation system and the imposition of housing restrictions for high-risk subjects, mandating their residence in facilities associated with legal oversight, such as the Korea Rehabilitation Center, as a means of behavioral control.

  Lastly, it is essential to expand the discretion of probation officers realistically to facilitate compliance supervision. When regulating the discretion of probation officers, akin to U.S. law, preemptive steps should be taken to mitigate potential conflicts between subjects and probation officers by establishing compliance delegation provisions that explicitly define the scope of the probation officer's discretion.

② Formulating a Targeted Compliance Plan for Electronic Monitoring Probation

  Given that the electronic surveillance system extends beyond mere location tracking through the attachment of electronic devices, the role of probation in effectively deterring recidivism among high-risk criminals and supporting their reintegration into society becomes increasingly crucial.

  Presently, individuals subjected to electronic monitoring probation face a dual obligation to comply with the provisions of the Probation Act pursuant to Article 9, Paragraph 3 of the Electronic Device Attachment Act. This dual obligation arises from the multifaceted nature of the probation system, encompassing guidance and supervision to prevent recidivism and support for resocialization. Therefore, imposing a stronger emphasis on general compliance, primarily oriented towards guiding subjects in their return to society and facilitating voluntary resocialization, does not align with the purpose of electronic monitoring probation. Ambiguities often arise regarding the probation officer's discretionary interpretation of the scope of the subject's obligations, particularly when it pertains to abstract general compliance matters. Hence, to ensure compliance and effective guidance and supervision, it is crucial to limit the authority of probation officers to special compliance measures that primarily aim to prevent recidivism, such as those stipulated in the Electronic Device Attachment Act. Special compliance measures are predicated on control rather than guidance, intended to reduce reoffending risks and prevent recidivism, and may entail punitive sanctions for non-compliance.

  In this context, to address the inherent conflict between supporting community reintegration and the need for stringent supervision and control to deter recidivism, a more specific and explicit set of special compliance measures is required. Above all, in light of the fact that the electronic monitoring system in Korea was instituted to combat the "high risk of sexual assault recidivism," with a substantial proportion of electronic surveillance cases involving sexual crimes, it is imperative to introduce or augment special compliance measures tailored to the characteristics of sexual assault offenders, aligning with the Korean context. These may include provisions related to curfew adherence, prohibition of false reporting, cooperation in verifying living conditions, abstinence from alcohol for specified periods, participation in computer-based monitoring, prohibition of unapproved internet-connected devices, collaboration in searches and seizures without a warrant, and home visits. These compliance measures are essential for facilitating the guidance and supervision of probation officers in preventing recidivism.

  Lastly, following the inclusion of parole in an electronic monitoring system as per the 2020 law revision, there is a compelling need to proactively employ electronic supervision as a mechanism for ensuring compliance, akin to the approach adopted in the United Kingdom. The confirmation of adherence to compliance mandates placed upon probationary subjects can be considered the most fundamental aspect of guidance and oversight. However, relying solely on the cooperation of probationary subjects for supervision is inevitably beset with limitations. Consequently, it becomes imperative to fully harness the inherent advantages of the electronic supervision system and actively introduce a comprehensive strategy for utilizing information technology in electronic supervision. This approach should extend beyond mere GPS location tracking and encompass other aspects of compliance, such as monitoring drinking status, drawing inspiration from the UK model.