형벌의 의미와 정당성 - 언제나 형벌은 필요한가? -

Abstract

This article mainly explores next some questions: (i) should not the purpose and meaning of criminal penalty place not only on retribution and precaution, but also on governing of the conflict? (ii) Does argument regarding justification of criminal punishment under the purpose of the criminal penalty needed? (iii) How are the discussion about the justification of criminal punishment?, and (iv) Do we always need the criminal penalty. The vital point of this work as follows:First, regarding the issue on what basis of the criminal punishment imposed is may be answered with it lies in that the criminal punishment may be assigned via the state, the justification of the law, protection of community, etc. If criminal penalty has lack in the justification, it is better that criminal punishment is less being applied. Second, concerning the questions that the criminal punishment should be unconditionally put it on to defendant may be answered with the state criminal punishment power is subject to the principle of responsibility and it should restrictively be used within the limitations. Third, about the inquiry that always the criminal punishment is necessary may be response by applying the notion that the necessity of criminal penalty required by supplemental and effectiveness of the criminal penalty as a precondition. That is to say, to suppress the harmful act and behavior in the society it must be minimal methods or tools that are necessary and the criminal penalty which are lacks in effectiveness are unnecessary as a criminal penalty. Fourth, is the purpose of criminal punishment only retribution and precaution? An attempt to resolve the long-pending trouble of the nature of criminal penalty shall be put in restored or restitution judicature by focusing the managing the conflicts. Ultimately, the criminal penalty must be required the justification, and if not, it is better that the power of imposition of criminal punishment shall be minimally applied. Moreover, we should be out from the traditional perspective of the criminal penalty and exert to rehabilitate the damages of the victim and require adjusting conflict between victim and perpetrator. Note that the states' power of imposition of the criminal penalty may find the justification in that the power may only use within the limitation of 'rule of law' principle and if it is applied beyond the liberalism with the dignity of human beings it deviate from the modern general idea.