형의 일부에 대한 집행유예

Abstract

Some argue that the probation for a part of the punishment should be allowed for reasons such as special preventive consideration in accordance with individualization of the punishment and ensuring the concrete validity of sentencing in individual cases. This is closely related to the sentencing discretion of the judiciary. On the other hand, there is a question whether shock probation is required as a way to once more commute the punishment at the discretion of the judge, in the case that the lower limit of the statutory punishment is limited, with the exception of mitigation of the punishment in extenuation of circumstances. About the effect of the passage of time on probation, majority opinion of the academic world and judicial precedent says that the legal effect of the sentencing is lost. According to them, if shock probation period has elapsed, sentence is reduced to the actual period of detention. But this opinion may disregard the purpose of the statutory punishment system which is restricting the lower limit. Especially it could be seen as disregarding the purpose of mitigation of the punishment in extenuation of circumstances(mitigation of the punishment in extenuation of circumstances is that if there are considerable grounds, reduce the lower limit of the statutory punishment to 1/2). I think, because individualized sentencing which is considering the concrete validity is necessary, shock probation should be allowed. And in order to approve shock probation, the effect of the passage of time on the probation should not be understood as the all loss of the legal effect of the sentence, because this interpretation could mean as commuting the statutory punishment once more. Personally, I think, we have to divide the effects which are based on the execution of a sentence and irrelevant to the execution of a sentence. So, as a result of the passage of time on the probation, only effects based on the execution of a sentence should be lost. Interpreting like this, even if the period of the probation were elapse, substantially the punishment would not be reduced. Thus this opinion will not disregard the purpose of the statutory punishment system which is restricting the lower limit. However, even allowing shock probation, deferred sentence should not be allowed an unlimitedly, in order to prevent harmful effect according to execution of short term imprisonment. Imprisonment which is executed must be at least 1 year. And un-reprieved sentence should be longer than reprieved sentence. Only doing this, it is possible to prevent that the shock probation is abused.