사형제의 쟁점 및 개선방향

Abstract

The death penalty is highly unconstitutional for the following four main reasons. First, in modern criminal law, there must be a retribution effect of punishment, a general prevention effect, and a special prevention effect. However, the death penalty is highly unconstitutional because it deprives the life of a vicious felon and has no special preventive effect on punishment, and violates human dignity under the constitution due to permanent deprivation of the right to life of a condemned person. Second, the proviso to clause 4 of Article 110 of the Korean Constitution is intended to emphasize the seriousness of the death penalty, and it is unlikely to see this legal regulation as a regulation that recognizes the death penalty. Third, the general preventive effect of punishment by the death penalty cannot be demonstrated, and instead of the death penalty, the general preventive effect or special preventive effect of punishment can be performed through an alternative means of absolute life imprisonment or relative life imprisonment. Therefore, the death penalty is highly unconstitutional because it violates the principle of balancing test under the constitution. Fourth, the death penalty is highly unconstitutional because there is a possibility of misjudgment. However, the results of the National Human Rights Commission of Korea's 2003 and 2018 survey on whether or not the death penalty should be maintained by about 66 percent and 80 percent, respectively. Therefore, in order to guarantee and realize the principle of democracy in a national sovereign state, a radical improvement direction is not desirable to abolish the death penalty altogether and replace it with an "absolute life imprisonment" system. Therefore, it is desirable for the National Assembly to gradually reduce the types of crimes subject to death, such as limiting the types of crimes that can be imposed on the death penalty to an appropriate extent. And the National Assembly, after improving the death penalty first, will abolish the death penalty if more than half of the Korean people agree to abolish the death penalty in the future, and instead, it will be able to parole by various stringent and demanding substantive and procedural requirements in the case of at least 30 years to up to 50 years in prison and high possibility of improvement, rather than the 'absolute life sentence' system, which does not have a special preventive effect of punishment. It is desirable to improve the system of a large life sentence. Also, if a felon who has been sentenced to a relative life sentence like Germany is paroled, it is desirable to improve by the court's judgment, not the Ministry of Justice, to the form of mandatory imposition of electronic monitoring or electronic control devices such as probation and electronic bracelets for a considerable period of up to five years, for example.