美國의 死刑法에 대한 硏究 - 美 聯邦大法院의 比3 原則과 매사추세츠 死刑法을 중심으로

• 영문명: The Death Penalty Laws in America －The Proportionality Principle in the Cases of the United States Supreme Court and the Death Penalty Act in Massachusetts－
• 발행기관: 중앙대학교 법학연구원
• 저자명: 姜于乂(Kang Wu Ye)
• 간행물 정보: 『법학논문집』法學論文集 第31輯 第1號, 295~339쪽, 전체 45쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.08.30

영문 초록

  For more than 40 years, in America, the courts and the legislatures have been struggling for the better death penalty laws. Those efforts gave birth to the most distinctive and important principle of the proportionality. The principle of proportionality, in its" extreme form, does not allow any legal formality. Because the means which human beings can rely on for a rational legal system do not appear to work well in this highly sensitive area of death penalty laws. Justice Harlan,in the case of MacGautha v. California, declared that it was impossible to establish the legal standards of death sentencing based on human languages before the consideration of actual cases.
  On the other hand, without legal standards, whim and caprice freely come into the decision making process of death sentencing. In Ferman, the Supreme Court of United States explicitly expressed that it could not be tolerant of the lawlessness of death sentencing process. After Ferman, the ideas of MacGautha and Ferman have seriously collided with each other. That is, even though the principle of proportionality does not easily allow the rule of law in the process of death sentencing, the total absence of the rule of law is also intolerable. As a matter of fact, even though this is a serious paradox, this has incited the enormous debates about the jurisprudence of death penalty laws in America.
  Today, the conspicuous and concealed injustice in the operation of death penalty system gets widespread skepticisms. First, those skepticisms points out the invidious factors, such as race and wealth, that have intervened with the decision making process of death sentencing. Also, the criticisms state that any death penalty systems operated by human beings inevitably produces the unjust and inaccurate consequences. The Death Penalty Act of Massachusetts is a reaction to those skepticisms. Because it tries to reestablish the more justifiable death penalty system, it follows the tradition of Ferman. Most of all, it aggressively makes an effort to resolve the question of accuracy in the proof of evidence. Also, it tries to control the discretions of participants of a criminal proceeding, which the Supreme Court in Ferman casts some doubt on. Most of the proposals in the Massachusetts Death Penalty Act are about the procedural reformations of the criminal justice system. In my view, this is because no substantive approaches are fundamentally effective for the reformation of death penalty laws, owing to the principle of proportionality.
  In Korea, the criminal justice system of extinguishing a human being"s life should be more cautiously dealt with and thus deserves more resources. The experience of America may shed some lights on our death penalty system. Nonetheless, it should not be forgotten that the power of the principle of proportionality may always casts some doubt on any legal standards, whether it is procedural or substantive and thus makes it difficult to produce a kind of a perfect system. The pressure of anti-death penalty arguments, along with the agnostic power of proportionality, may defeat any effort of the formation of death penalty system. Then, it must lead to the abolition of death penalty. This is ultimately dependant on the emotion and acceptability about death penalty among members of a community.

목차

1. 서론
2. 미국 연방대법원의 법리
3. 매사추세츠 사형법안
4. 결론

키워드

사형(Death Penalty Capital Punishment) 미국사형법(American Death Penalty Law) 양형법(Sentencing Law) 비례의 원칙(The Principle of Proportionality) 법의 지배(Rule of Law) 매사추세츠 사형법안(Massachusetts Death Penalty Act)