자유형집행 정지제도에 대한 비판적 검토 - 「직접적 사법통제방식」으로의 전환을 위한 비교법적 고찰 -

Abstract

Our Criminal Procedure Code Article 470 states that If a person condemned to imprisonment, imprisonment without prison labor or disciplinary lockup is in a state of unsound mind, the execution shall be stayed until his recovery, subject to the direction of a public prosecutor of the public prosecutor's office corresponding to the court which pronounced the penalty or of a public prosecutor of the public prosecutor's office having jurisdiction over the place where the condemned is situated. In addition, Article 471 states that the execution of imprisonment, imprisonment without prison labor or disciplinary lockup may be stayed in the following cases : (1) if the health of the condemned will be seriously impaired as a result of the execution of penalty or there is apprehension that the condemned will not survive it, (2) if the condemned is seventy years of age or over, (3) if the condemned is in the sixth month of pregnancy or more, (4) if sixty day have not elapsed after the condemned was delivered of a child, (5) if the lineal ascendants of the condemned are seventy years of age or over, or disabled or seriously ill, and thee is no relative to look after them, (6) if the lineal descendants of the condemned are in their infancy and there is no relative to look after them, (7) if there is any other valid reason. the former are necessary reasons, while the latter are arbitrary reasons to suspend the execution. Particularly, in reference to the judgement as to the existence of reasons, our criminal procedure law leaves the matter to the full discretion of the public prosecutor's office. However, as abuse cases concerning the stay of execution of the sentence increase, the necessity of a judicial control over public prosecutor's wide discretion comes to the fore. Therefore, to solve the problem, there is a need for the changeover to 'direct' judicial control system such as 'Strafvollstreckungskammer' in Germany or 'juge & tribunal de l'application des peines' of France.