사면제도의 개혁을 위한 소고(小考)

Abstract

The pardon system was introduced into South Korea in 1948 at the same time with the establishment of nation. The prerogative of pardon was bestowed upon the President, following the legal system of most western countries. However, in the operation of that prerogative, South Korea has been different from other western countries. The history of pardon has been spotted with the abuse and misuse of the pardon power. Over 100 times of pardon has been practiced, including 7 times of general pardon. Especially in the end of every presidential term, most of the Presidents has released and reinstated his aids convicted with corruption or misfeasance. These unpleasant experiences make the reform of pardon system to be the imperatively necessary task for correcting the criminal justice malfunction. This brief draws up a plan for the reform of pardon system in South Korea. The principal points are as in the following. Firstly, pardon should not be permitted to the limited cases like special crimes of the Presidential aids. The limited crimes include corruption, misfeasance and anti-human crime. Secondly, the committee of reviewing pardon should be reformed for doing its task independently. For doing so, its nine members need to be nominated by the President, the Assembly and The Supreme Court equally. Lastly, the practice of pardon should be checked by the exterior institution like the Assembly or the Supreme Court. The restraining influence of general pardon belongs to the Assembly, while the pardon of individual criminals could be checked by the Supreme Court.