학술논문
정치적 특별사면과 사법정의
이용수 91
- 영문명
- Political Amnesty and its Judicial Justice - Focusing on Special Amnesty Abolitionism -
- 발행기관
- 한국형사정책학회
- 저자명
- 김재윤(Kim, Jae-Yoon)
- 간행물 정보
- 『형사정책』刑事政策 第29卷 第2號, 93~118쪽, 전체 26쪽
- 주제분류
- 법학 > 법학
- 파일형태
- 발행일자
- 2017.08.03
5,920원
구매일시로부터 72시간 이내에 다운로드 가능합니다.
이 학술논문 정보는 (주)교보문고와 각 발행기관 사이에 저작물 이용 계약이 체결된 것으로, 교보문고를 통해 제공되고 있습니다.
국문 초록
영문 초록
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.
목차
Ⅰ. 들어가는 말
Ⅱ. 특별사면의 현황과 정치적 특별사면의 주요 국내외 사례
Ⅲ. 사면법상 특별사면 폐지론의 주요 논거
Ⅳ. 맺는 말
키워드
해당간행물 수록 논문
참고문헌
관련논문
최근 이용한 논문
교보eBook 첫 방문을 환영 합니다!
신규가입 혜택 지급이 완료 되었습니다.
바로 사용 가능한 교보e캐시 1,000원 (유효기간 7일)
지금 바로 교보eBook의 다양한 콘텐츠를 이용해 보세요!