형집행 순서에 대한 소고 - 자유형과 노역장 유치의 집행 순서를 중심으로 -

Abstract

Recently, the possibility of changing the order of execution of imprisonment and confinement of workhouse has become a problem. Considering the opportunity for parole, it may be advantageous for a sentenced person to detain a workhouse prior to the execution of imprisonment. And, in relation to the period of repeated crimes or the period of probation, such things may be disadvantageous to the sentenced person. In other words, the order of execution of execution of imprisonment and workhouse confinement gives practical benefits or disadvantages to prisoners. There are court judgments in this regard. And, there are various views, such as the view of allowing it in principle, the view of allowing it as an exception, and the view that there are internal limitations. In light of the content of the legal text, legal stability, predictability, and importance of human rights protection, it is reasonable to view that there are internal limitations(unless there are special circumstances, it is beyond the internal limitation of the right to change the order of execution of the prosecutor). In the above 'special circumstances', there will be 'when there is concern about the completion of the prescription'. On the other hand, the court's interpretation of the effect of changing the order of execution of the sentence may also be divided. And this could be a very important issue for a prisoner. Therefore, it is necessary to clearly stipulate in the Criminal Procedure Law. As described above, the order of execution of the sentence can have a great influence on the sentenced person, so in principle, the order of execution of the sentence should be changed according to the intention of the sentenced person. However, it is desirable to limit the number of times prisoners exercise their right to change. And, it is desirable to stipulate that the prisoner's intention is not followed in cases where there is a concern about the completion of the prescription period and cases corresponding thereto. In addition, it is desirable for the sentenced person to notify the advantages and disadvantages of the exercise before exercising the right to change the order of execution. Only then will the predictability of all, including prisoners, sentence enforcement agencies, investigation agencies, and courts, be faithfully guaranteed(specific amendments are presented in the text).