사형의 장기 미집행에 따른 ‘형의 시효 제도’ 개선방안에 관한 연구

Abstract

Korea has been classified as a ‘de facto abolitionist country’ by the international community because it has not executed the death penalty since December 1997, but even now, about 24 years later, only the execution of the death penalty has been withheld without reforming the death penalty-related laws. For example, Articles 77[Effect of prescription] and Article 78[Period of prescription] of the Criminal Act specify that if 30 years have passed without execution after the sentence of the death penalty is finalized, the prescription will expire and the execution will be exempted. Even though the death penalty was imposed by the judiciary and the Constitutional Court recognized the death penalty as constitutional, the executive branch’s refusal to execute the death penalty arbitrarily, conscious of the criticism from the international community and public opinion from academia, religious circles, and human rights groups, is under Article 79 of the Criminal Act. “Other unenforceable period shall not be construed as.” Therefore, it 30 years have passed without the execution of the death penalty without just cause, the statute of limitations of the sentence should be considered complete. In this way, the Continental Criminal Code provides a ‘prescription system’, but the German Criminal Code abolished the death penalty, thereby solving this problem. And the Japanese Criminal Code was revised in 2010 to resolve this issue by prescribed the phrase “excluding the death penalty” in Article 31[Prescription of Penalties] of the Criminal Code. Therefore, it is necessary to argue the relationship between the long-term non-execution of the death penalty and the prescription of the sentence in our Criminal Act, and to come up with an amendment plan accordingly.