Chapter 1 Purposes
The prisoners are put in the prison to be punished because of their crimes. The imprisonment that most of prisoners are forced to serve shall give labor service in prison in accordance with laws and regulations (Article 67 of the Criminal Act). As such, the prison labor plays an important role at modern punishment. The prison labor seems to have two of opposite values according to its history: The one is that prisoner's labor shall be punishment being different from common labor work to be an obligation. The other is that prison labor allows prisoners to live constructive lives after being released from prison and to lessen gap between prisoner and the society. As such, the prison labor has two of opposite point of views to have each different value and purpose. Article 1 of the Act on Imprisonment and Prisoners' Treatment (hereinafter called 'the Treatment Act') regulates that the purpose of the act is to educate and enlighten prisoners and to help them to the society in sound way and to regulate prisoners' treatment and rights as well as prison management and control. And, Article 65-1 of the Treatment Act regulates that prison labor helps prisoners learn technology to return to the society in sound way and to be appropriate for prisoners to have desire of the labor work. Therefore, the purpose of prison labor is to enlighten prisoners as an treatment and to help prisoners return to the society in sound way. However, the Criminal Act regulates that the prisoners are forced to live in the prison and to give prison labor (Article 67) so that prison labor is a kind of punishment. And, the Treatment Act regulates that the prisoner is obliged to do prison labor and other labor work (Article 66). and that prison labor is obligatory. The opposite goals have produced a variety of differences at establishment of prison labor policy. And, the prisoners are paid prison labor subsidy that is not the government's employment but small amount of benefit. After being released from the prison, the prisoners are unable to save money to live life and to transfer money to family and to compensate for losses and damages in favor of victims.
Therefore, this study examined legal status of prison labor from point of view of criticism that was obligatory at punishment, and investigated legal status of prison labor from point of view of treatment in prison without punishment by comparison. And, the study examined discussion on wage system based on labor work.
Chapter 2 General Theory of Prison Labor
The prison labor is expected to have multi-purposes in accordance with six theories: in other words, the government's use of labor force of the prisoners, pains that prisoners are given, compensation for the government's expenditure to manage prison, keeping rules in the prison, labor work that prisoners are given same as freedom labor work of civilians, and a way that prisoners are able to return to the society, The prison labor is said to let prisoner improve and return to the society well from point of view of not only theory of Erziehungsstrafe but also theory of distribution. The prison labor is aimed at punishment, retribution, punishment and education from theory of retribution to let prisoners improve them and return to the society well after being educated. In other words, the purpose of prison labor is to let prisoners improve and return to the society well. Laws and regulations in the world are aimed at improvement of the prisoners in accordance with theory of Erziehungsstrafe, for instance, the Minimum Level Standard Regulations on Treatment of the Persons arrested of the United Nations, the resolution on the prison labor of the 1st term UN Anti-crime Criminal Justice Conference, and the Act on Imprisonment and Treatment of the Prisoners. So, the prison labor needs to clarify its purpose as an educational improvement way.
Article 65 of the Treatment Act regulates that the prison labor shall help prisoners learn technology to return to the society in sound way and to promote labor desire, and that the warden of prison shall consider various kinds of factors to give prisoners prison labor, for instance, ages, term of imprisonment, health, technology, character, hobby, job experience, a means of living in the future and other circumstance and conditions of the prisoners (see Article 65-1 and 65-2 of the Act). The prisoners shall do prison labor and other labor work (Article 66 of the Act). The warden of prison shall give prisoner labor work by referring to performance of prison labor and estimation ratio and time of prison labor subsidy, etc to give each prisoner daily and monthly labor work (Article 12-1 of the guideline). The prison labor now consists of labor under direct management, consigned labor, commuting labor and whole day labor, and more than 20,000 prisoners in average a day join production as well as technical training. 18,926 prisoners in average a day were employed in August, 2010.
On the other hand, the prisoners can be paid prison labor subsidy in accordance with laws and regulations of the Minister of Justice considering types and performance of the prison labor, performance of corrections and other conditions to promote labor desire and to help prisoners return to the society in sound way. (Article 73-2, the Treatment Act). The subsidy can be classified into three grades, that is to say, high, middle and low, depending upon skill, weight of the labor and other conditions to pay it to the prisoners (Article 66-1 of the Guideline). The number of prisoners who were paid the subsidy was the largest in 2003. Since 2003, the number decreased gradually, and total number of the prisoners who were paid the subsidy increased little by little. And, the amount per person rapidly increased in the 2000s. These days, 'NOVA (the National Organization for Victim Assistance)' can be donated job subsidy even before being released from the prison to give prisoners opportunity of confession and to restore relations with the victim.
Chapter 3 Legal Characteristics of Prison Labor
Both penal servitude and imprisonment with labor have same term of imprisonment, and they can vary depending upon obligation of prison labor. Both types of imprisonments have been separated in accordance with the idea that prisoners should be punished depending upon shamelessness. The imprisonment have been divided into two types depending upon prison labor that was originated from obsolete point of view that disregarded labor work to neglect true values of prison labor. The modern labor work idea that regards labor work as affirmative and valuable activity can argue that prison labor cannot be extraordinarily disadvantageous punishment. And, the prison labor helps prisoners learn regulations and to prepare for return to the society well after being released from the prison. Therefore, prisoners shall be given prison labor not by characteristics and contents of the crimes but by selection of enlightenment method toward the prisoners.
This study suggests some of theories to reform conventional prison labor system:
Firstly, the theory of socialization of the prisoners argues that imprisonment in prison should be open to the society, and that status of the prisoners should be close to that of the society.
Secondly, the theory of inspiring argues that prisoners should either be under supervision of administration authority or have base of life in prison so that they should not be given other disadvantages than life in prison.
Thirdly, the theory of justice model argues that imprisonment shall be responsible for execution of decision of the court only, and that life in prison means either limitation or depriving of freedom of the prisoners so that prisoners should be guaranteed other rights in prison.
Fourthly, theory of Due-process argues that prisoners who are permitted to have human rights have relations of due-process so that basic principles such as free estimation, minimum levels and legal authority that have been made to control human rights should be used in imprisonment process.
The aforementioned theories that criticize prison labor have clarified legal aspects of prison labor to exclude punishment of the imprisonment. Therefore, theory of unification of imprisonment argues that classification of labor-oriented imprisonment should be removed, and that imprisonment should not be applied to either physical body or properties.
Prisoners are forced to give prison labor in accordance with current system to be given pains. However, prisoners are unable to be educated and to return to the society well with compulsory labor work that is accompanied with pains, so that prison labor shall be separated from imprisonment.
When prison labor is separated from imprisonment, a problem may occur on introduction of wage system in compensation for supply of the labor work of prisoners. The prison labor subsidy system pays not wages in compensation for labor work but benefit to promote labor work. The subsidy may help prisoners improve life and to return to the society well so that ideal monetary amount shall be equivalent to labor wage in the society.
Chapter 4 Prison Labor based on Comparison Law
Germany, Austria, Switzerland and other Western European countries unified imprisonment to exclude prison labor. In Germany, the term of imprisonment was unified to be one month or more to 15-years or less in accordance with Article 38-2 of the Criminal Act. In Austria, the term of imprisonment was defined to be one day or more to 20-years or less in accordance with Article 18-2 of the Criminal Act. In Switzerland, the term of imprisonment was defined to be 6-months or more to 20-years or less in accordance with Article 40 and Article 41 of the Criminal Act. And, the UK, Sweden, Netherlands, Hungary, Bulgaria and Czechoslovakia also adopted unified imprisonment. Even countries that unified imprisonment regulated obligation of prison labor. For instance, German criminal act did not regulate obligation of prison labor, and prisoners have obligation of prison labor in accordance with the act on execution of sentence. (Article 41-4 of StVG). Austrian criminal act also regulates prisoners' obligation of prison labor. (Article 44-1 of StVG). Switzerland criminal act also regulates prisoners' obligation of prison labor (Article 81 of StGB). When life in prison is similar to the one in the society under situation that unemployment exists structurally, prisoners' labor life cannot be thought to be natural. So, labor obligation should be reconsidered. The most important thing is not cancellation of labor obligation but admission of the rights under current situation. Uncertainty of labor obligation and rights of the prisoners may reflect ambiguous position of labor workers according to local laws and regulations. The change of laborers' position indicates that prisoners have almost same position at free labor market, and that prisoners follow new limitation including labor obligation without rights and obligations of common labor workers. Austria is said to have the closest prison labor with aforementioned case, and it has not applied all of social insurance systems and estimates roughly wage and salary in accordance with nationwide agreement. And, labor pattern of most of prisons do not differ from that of outside world. In July 1998, the Constitutional Court of the German Federal Government decided to introduce proper level of wage system of the prisoners that can be an important example of other countries that accept constitutional obligations of the government's supply of means of living lives after being released from the prison. Japan clearly defined low position of the prisoners to apply labor work rules strictly: On the contrary, no regulation may have adverse influence upon prisoners' position.
Chapter 5 Summary
In Korea, imprisonment consists of penal servitude, imprisonment with labor and detention: Current laws and regulations principally admit of compulsory labor work of the prisoners only who were sentenced penal servitude. (Article of the Criminal Act). Therefore, the prison labor is said not to be labor work based on treatment but to have punishment nature. (Article 67 of the Criminal Act). So, prison labor is said not to be treatment but to have punishment characteristics. However, prison labor can remind prisoners of values of the labor work and help prisoners learn technologies for return to the society and to save money of self-support, so that labor work obligation cannot be thought to be a pain. Therefore, prison labor shall be regulated not to be imprisonment but to be treatment. In other words, to establish status of the prison labor that can attain goals of imprisonment, Article 67 of the Criminal Act shall be deleted and the Imprisonment Act shall regulate prison labor. So, punishment that has unified both penal servitude and imprisonment with labor shall rename to be either imprisonment or detention.
As a matter of fact, the purpose of prison labor is to enlighten prisoners and to help them to the society well. When prisoners are forced to do prison labor in the name of enlightenment and return to the society, they may give compulsory labor work that can be worse than punishment can be. Therefore, prisoner's status shall be set to be given treatment. The prisoners shall be given treatment subject to their voluntary participation so that they had better have cooperator's status concerning purposes of the treatment and prisoners' cooperation should not be obligatory.
The government can earn income by taking advantage of prisoners' labor work so that it should spend the income to help prisoners return to the society well.
The prisoners shall be compensated for their labor work not by wage system of normal labor workers but by compensation system that reflects labor attitudes and desires. This study did not examine standards of reasonable compensation for labor work. The author shall discuss the standards later after the enlightenment is excluded from punishment without labor to establish treatment.