형벌의 기능론적 분석과 그 형사정책적 함의

Till now scholars of criminal law, criminologists, sociologists and psychologists have studied the functions of punishment; however, they could not reach the level of overall review and analysis on the whole function of punishment. This study reviews the whole function of punishment and examines the functions of punishment by punishment theory, sociology and psychology. The positive functions of punishment are special deterrence, general deterrence, restraint, rehabilitation, education, retribution and censure, atonement(Sühne), prevention of vigilantism, restoration and social integration. The negative functions of punishment are labelling and dysfunctions of imprisonment. The functionalism of punishment should be discussed and examined by multidisciplinary way in the dimension of crimalistics. Recent trend of punitivism and the legislation of severe penalty system based on such policy only make the positive functions of punishment weaker while increase the negative functions of punishment. These systems based on punitivism had been introduced with vague expectation that they will enhance deterrence function, retribution function, making restraint function and rehabilitation function; however, overall review and examination on the function of punishment should precede the introduction of new punishment system. Righteous punishment protects Rechtsgut and protection of the social order, aims for the value of legal peace and enforces condemnation that is corresponding to the extent of offense based on the value system of social community. Therefore, study on the functions of punishment and the review of punishment policy should be done within the framework of punishment theory. In addition, criminal policies, which give punishment in accordance with retribution principle but consider special and general prevention, minimize the negative functions of punishment and increase the positive functions, should be established.