사형의 형벌적 특성에 관한 비판적 연구

Abstract

While law philosophers and law theorists insist a normative discussion about ideology of punishment to obtain the answer why offenders should be punished, sociologists and historians have interested in the changes of punishment form and appearance as well as extinction of punishment ideology. The changing process of punishment from physical torture and pain into psychological control is not just because human society have evolved from barbarism to civilization. It would be more reasonable to consider it as the existing predominant form of punishment have lost the social and historical validity. Therefore, the death penalty of today should be discarded, since it is a punishment without any social and historical validity for the human society. d yet. Though many researchers have strived for statistical regularity to define the interrelation between death penalty and heinous crime, both abolitionist and retentionist could not suggest any obvious evidences which is able to overwhelm the opponent. Along with executing felon, it is obtain the results of preventing further crimes committed by the felon. However, those such results can be anticipated due to the life imprisonment; thus, it cannot be seemed as death penalty is certainly necessary to prevent second conviction of felons. The crime deterrent will take effect not from the intensity of punishment, but through the certainty of punishment. If offenders is put into life imprisonment under the circumstance of wrong belief that putting to death depends on whether the offender is exposed or not, which side would be mentioned as having much greater crime deterrent effect. Therefore, it would be more effective toward crime deterrent with the fact that raising the rate of arrest the offenders and giving punishment without exception through scientific investigation. In case of it is doubtful if death penalty is able to contribute to the prevention of a murder case, maintaining the life of condemned criminal by turning into benefit of poor people is upright lawful thought. Furthermore, the concerned people on criminal justice and scholars of criminal justice should take it as their mission as well as duty to encourage the cognitions above stated to be established into criminal identification of general society properly.