사형제도 폐지에 관한 소고 = 헌법재판소 2010.2.25. 2008헌가23결정에 대한 비판적 검토

다국어 초록 (Multilingual Abstract)

South Korea practically has become an abolitionist since it has not excuted the Death Penalty for over 15 years. However, the Constitutional Court of Korea ruled in 2010 that the Death Penalty system does not violate Article 10 and 37 section 2 of constitution.
Therefore, this thesis reviewed most current case 2010. 2. 25 2008 Hun-Ka 23 judgement with critical perspective for the death penalty and its domestic and international trend and results are followed as below.
As human dignity must be based on the right to life as it is ensured by article 10 of the constitution, the death penalty is said to be contradicting directly with human dignity and its right to life because the right to life can be recognized as the fundamental ensured by the constitution as foundation to human existence.
Within constitutional order where right to life is protected, concept of "life valueless to protect" and "life valueless to exist" must not be placed as a driving force in policy making. The death penalty recognizes criminal as a means to prevent recurrence of crime and is an inhuman system not providing moral freedom to regret or improver, by so it is violating the article 10 of constitution I think.
In addition, the death penalty is a punishment as only retribution and isolating criminals from society is effective as life sentence, and in case of sentencing life to a nefarious criminal, it is hard to see right justice balance between infringement in legal right of criminal by the punishment and degree of infringement in legal right by crime with responsibility of criminal.
Therefore, I believe life sentence can achieve means of punishment and think creating biggest damage as deprivation of human life under the name of law and justice is violating principle of excessive restriction.
In Korea, since abolishment of death penalty, growth of violent crime has not been proved objectively and the trial is as it is carried out by human, it is clear that we can not exclude possibility of misjudgement. As the Constitutional Court of Korea has expressed, if misjudgement is considered to be a fatal limitation of judicial trial, because of rather this limitation, the punishment depriving most fundamental right to life of humanity that is impossible to recover must be diminished.

목차 (Table of Contents)

• I. 서론
• II. 사형제의 현황과 추세
• III. 사형제의 위헌성 논의
• IV. 결론
• 參考文獻
• Abstract