집행유예제도의 입법론적 검토와 개선방안

Abstract

The Lawmaking Theory's Examinations and Schemes for Improvement on a Stay of Execution Gi, Young-Hwan / Cho, Haeng-Nan The research objective of this thesis is to examine and assess reasons of effectiveness and abrogation about a stay of execution within the framework of the lawmaking theory, and based on such analysis, to suggest schemes for improvement on the requirements and effectiveness in a stay of execution. Following these research objective, the results of this thesis analyzed as below. Firstly, in case of the short-term penalty under 6 months, a stay of execution should be sentenced without any exceptions. Up to the length of the penalty, the preconditions for a stay of execution can be decided. It is desirable to include the order to restore the status quo in a stay of execution so that the victim can satisfy the desire to return to the original status. Secondly, a stay of execution in case of a monetary penalty should be accepted, but though a stay of execution is not desirable in case of free penalty, it is necessary in case of monetary penalty. Thirdly, the repeated stay of execution during the first stay of execution should be acknowledged for once, and the regulations on the withdrawal of a stay of execution resulting from the disqualification identified later should be deleted. There should be the possibilities to replace the withdrawal of a stay of execution with the expansion of probation term, the additional imposition of social service, etc.. Furthermore, when a stay of execution is cancelled, the already performed services should be acknowledged in the pronounced sentence. In conclusion, the present law under which the pronounced sentence loses its legal effect if the accused keeps the granted term on probation, is considered to be desirable.