정치적 특별사면과 사법정의 -특별사면 폐지론을 중심으로-

Abstract

In Germany, there was a legal maxim, which says “Law without special amnesty is illegal(Recht ohne Gnade ist Unrecht).” However, now people living in Republic of Korea are not in the era of absolute monarchism, but instead they are living in the era of democracy ruled by constitutionalism. Until now, past Korean presidents constantly have overused special amnesty, which is an ‘aging artifact of absolute monarchism’. There are some cases such as ‘quasi-nationally-unified special amnesty’, which is the case of special amnesty without national consent such as the one toward Chun Doo-hwan, who was president of South Korea from 1980 to 1988 and Roh Tae-woo, who served as president of South Korea from 1988 to 1993, mere destroyer of constitutional order, and ‘self-service special amnesty’, which is politically motivated. Especially, such special amnesties were done even before the ink on the paper, before people’s shock and rage were settled, without asking basic questions such as what type of crime it is, how severe and how long its punishment should be, whether the criminal is regretting the crime and whether there would be a compensation for the damage. These kinds of indiscreet amnesties far from national consent had constantly exerted throughout the history of Korean government. From this, the history of special amnesty in Korea can be called as the history of abuse. Such deep-rooted evil of abuse of special amnesty can’t be resolved by ex post facto control, such as condition control – controlling the subjects of amnesty toward destroyers of constitutional order, procedure control – organizing fair and transparent judging committee for amnesty, exterior control – listening to opinion of judicial branch, and adjudication on a constitutional complaint. Therefore, this article looked through not only just ways to improve such use of special amnesty, but also the overall opinions on abolitionism for special amnesty. In conclusion, related articles of special amnesty done by president, which is a mere ‘aging artifact of absolute monarchism’, should be deleted from the amnesty law and should be abolished. The legal maxim from the above should be changed as “Law without special amnesty is truly legal(Recht ohne Gnade ist echtes Recht)” at least in Korea. However, even when the right of president for special amnesty is abolished through the revision, still special commutation and special reinstatement should be maintained. Through this, it is reasonable to make it properly functioning such as achieving ‘misjudgement correction’ - correcting errors or defects which can appear throughout the overall judging process of court, and ‘self-rectification of constitutionalism’ - relaxing rigidity occurred in the process of realization of constitutionalism.