한국에 있어서의 사형범죄에 대한 수사·공판·집행절차

Capital punishment must be the oldest penalty based on retaliation and retribution upon criminals. We, Korea, are no exception to this fact. Nowadays, since the right to life of human is being recognized as the core fundamental human right hence increasingly, due to inhumanity and brutality of capital punishment system, people more willingly support the idea of abolishing capital punishment completely. Nonetheless, the supreme court and the constitutional court consistently insist that the capital punishment is a necessary evil and an unavoidable constitutional system, and the sentence to death be taken seriously. Generally, brutal criminals who take, infringe upon or threaten other people’s life recklessly are sentenced to death. Due to the seriousness of punishment, it can be characterized as a sort of fear-generating punishment which usually leads to a flit and destruction of evidence. On the whole it is committed so secretly except victim’s body found that it is very difficult to collect evidence. So investigators are likely to have the strong temptation of harshness on the suspect to solve the case early. This is where the tangible prosecution probe sharply conflicts with the concept of protection of human rights. Accordingly during the process of investigation of crimes punishable by the death penalty, to minimize human rights violations such as physical assaults, one needs to observe Criminal Procedure Act thoroughly. Therefore, Criminal Act and Criminal Procedure Act have various methods to secure validity of procedures. In particular, the court must possess strong control over the investigators not to make a step into illegal investigations, but to take the initiative in observing the proper legal procedures by conducting the trial fairly and swiftly. After the final judgement of death penalty, it is prohibited to conduct the execution in inhumane and brutal ways. Henceforth, so called “an open execution of criminals” is against the spirit of the Constitution, which is a typical execution trampling on human rights. Our Criminal Administration Act prescribes a closed hanging on a condemned criminal in the prison. Even if legality of the execution on a condemned criminal is justified, once conducted, it would be impossible to recover the life of the executed criminal even though misjudgement found. Therefore, despite the necessity of the death penalty, the court must observe if legal procedures have been properly conducted during the course of investigation, trial, and to the execu- tion in order to minimize an unfair human rights violation.