사형제도의 실증적 분석과 비판적 검토

Abstract

This study empirically analyzes death penalty in the Republic of Korea from 1980 to 1997, presents the result and aims to allow that to be reference to discuss the question of the maintenance or the abolition of the capital punishment system in the future. First, regarding the judgment of death in those years, this study observed the distribution of the capital sentence by the charge and the court in the first and appellate trials, according to which, the death penalty was not over-issued but it was very likely that it was sentenced onerously. Second, in the period called a civilian government as well as that of the authoritative military regime, the status of execution did not still decrease, but rather showed an overwhelming result as compared to the previous time. Especially, this study could looked back on the confirmation, commutation of a death penalty, and the practice of the management and enforcement procedures, and glance the execution planning process and the objective of the execution, and in particular, the objective to achieve by the execution was excessively inclined to the effectiveness of the general prevention of crimes rather than finding an essential solution of recurrent violent crimes, and incidentally, it mentioned reduction of the heavy burden of accommodation and the ripple effect of the execution of the remaining inmates. In addition, looking back on the reality of the capital punishment in that time and social situation, the abuse of the political context can be found, and there is the aspect of the death penalty in a special form as the capital sentence and execution of the ‘mental murder’, but there is also the good change that the ‘abolition of the death penalty council’ was composed, so the citizens' movement toward the cessation of the capital punishment was regularized. But, the elements of a crime, providing the death penalty are not overhauled still properly in the criminal law and the various special criminal acts, and the constitutional court act and the supreme court supports the constitutionality of capital punishment consistently and perceives it as a part of the nations administrative justice unwaveringly, but looking at the existence of the criminal judgment convicting the death penalty, it was difficult to find the ground of concreteness that the definitely framed sentencing guidelines of death penalty was admitted or evaded in the specific case. Along with this, although there was an effort to avoid misjudgment of lower instance, judgment of death occurred due to misjudgment, and it could not be sure that it was perfectly controlled by the supreme court, which was one of the conclusions of this study.