박정희정권기의 사형제도에 대한 실증적 분석과 비판- 제3공화국 및 유신체제의 일반 형사사건을 중심으로 -

In an attempt to address the questions on the reliability of death sentences given to offenders in general criminal cases during the Park Chung-hee regime, an era of authoritarianism, this study examined the tendency of first trials, appeal trials, and trials at the Supreme Court, along with how evenly the death sentences were given to criminals according to the types of crimes and the courts, and that made it possible to generally review the current status of proceedings and reporting procedures with regards to execution of death sentences. However, the statistical data of judicial agencies including the prosecution are inaccurate, and what has been suggested is that it is now necessary to objectively review related data in order to enhance the reliability. Since the nation-wide debate on death penalty during the Park Chung-hee regime was largely divided into two parts; one part that strongly and consistently pursues the retention of death penalty based on the idea of retributism, and the other part arguing that it is too early to discuss this issue at this time, thereby precluding the formation of civil movements to abolish death penalty at that time, but nevertheless, some movements actually started to take place aiming to make the changes happen. In regards to the conditions required to form a crime that serve as a legal ground for giving death penalties, the weighted punishment codes through singular criminal legislation and the weighted punishments of some crimes under special criminal laws were partially modified in the state in which weighted punishments were legislated during the era of reconstructing the nation, which resulted in adding excessive punishment codes on top of that already strong criminal laws in the legal system, as a tool for social defense. However, it turned out that except for some crimes, they were nothing more than a means to deal with social critiques that criticized the political powers back then that failed to cope with crimes, rather than serving as a means to accomplish its goal of properly punishing crimes through law execution. On top of that, in the state in which there were no set of standards yet for carrying out death penalties, there were a few discussions on the constitutionality of capital punishments, and to make things worse, the standards should include the realistic state of the nation along with the moral emotions of the peoples, while considering the order maintenance and public welfares pursued by the country the top priority, rather than human rights or human dignity. Although it turns out that there have to be some misjudgments made in society in which humans, only a finite existence, judge crimes and criminals, more serious problems are the fact that judicial powers tend to force people to fully trust all the final rulings while not trying to acknowledge misjudgments or even any possibility of misjudgments, and these problems seem to stem from structural contradictions created in the process of forming judicial powers and the existence of judicial powers itself. The fact that some trials at the Supreme Court had corrected some of the unfair final rulings of lower instances against the innocent during the Park Chung-hee regime, and that the judicial powers did not clearly reveal how they would address these problems, knowing the possibility of them, are what reflect this particular idea. In particular, the fact that they had sometimes wrongly accused of the innocent based on their hypothesis or subjective assumptions, notwithstanding the existence of the retrial systems, as a means to appeal to final rulings, and also the fact that there was no single case that deeply investigated any case of improperly accused people, and that the procedures were meaningless to those who were wrongly sentenced to death, are the sources of the conclusion of this study.