형의 실효의 법률적 효과

• 영문명: The Legal Effect on the Invalidation of Punishment
• 발행기관: 한국형사판례연구회
• 저자명: 김정원(Kim, Jung Won)
• 간행물 정보: 『형사판례연구』형사판례연구 제19권, 1~36쪽, 전체 36쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2011.06.30

영문 초록

Act on the Invalidation of Criminal Sentences(AICS) Article 1 (Purpose) regulates “The purpose of this Act is set out standards regarding the administration of previous criminal records and the materials of investigation records, and the invalidation of punishment, thereby guaranteeing a normal social rehabilitation for ex-convicts.” To achieve the one of the goals, AICS Article 7(Invalidation of Punishment) regulates “(1) Where the period of following subparagraphs elapses after the execution of punishment is completed or exempted without being sentenced to suspension of qualifications or more severe punishment, the punishment shall be invalidated: Provided, That detention and minor fine shall be invalidated when the execution of punishment is completed or exempted: 1. Ten years in the case of imprisonment or imprisonment without prison labor of more than three years; 2. Five years in the case of imprisonment or imprisonment without prison labor of not more than three years; 3. Two years in the case of a fine. … ”There are three more legal apparatus for the invalidation of punishment. One is the general amnesty by Amnesty Act Article 5 (1), the second is the motion to the invalidation of punishment by the person her or himself or a public prosecutor by Criminal Code Article 81, and the third is the elapse of the term of suspension of sentence without the sentence being nullified or revoked by Criminal Code Article 65. What is the specific meaning of the legal effect on the invalidation of punishment?The Supreme Court of the Republic of Korea has explained the specific meaning of the legal effect on the invalidation of punishment by the two concept, the invalidation for the future(not retroactive) and the fact that it does not mean that the existence of the decision of the punishment is extinct. It remains to be seen that what is the specific meaning of the legal effect on the invalidation of punishment in view of the two conflicting interests between the guarantee of social security and the guarantee of civil rights.

목차

Ⅰ. 문제의 제기

Ⅱ. 특가법 제5 조의4 제5 항의 의미

Ⅲ. 형의 실효의 법률적 효과

Ⅳ. 대상판결의 의미

Ⅴ. 결론

키워드

형의 실효 형의 실효 등에 관한 법률 장래에 향하여 소멸 일반사면 사면법 재판의 실효 재판의 실효 신청 집행유예 기간의 도과 형의 선고의 효력 상실 형의 선고가 있었다는 기왕의 사실 사회보호법 보호감호 재심청구 the invalidation of punishment amnesty general amnesty Amnesty Act the motion to the invalidation of punishment the invalidation for the future(not retroactive)