사형제의 위헌 여부에 대한 본질침해금지원칙의 적용- 헌재 2010. 2. 25. 2008헌가23, 판례집 22-1상, 36 결정에 대한평석을 겸하여 -

The present article attempts to demonstrate the following: First, even if Art. 41 No.1 of the Penal Code (which enumerates death penalty as a kind of criminal penalty) is declared to be unconstitutional, it does not follow by itself that all other legal provisions providing for death penalty as eligible for the respective crime are necessarily unconstitutional. Second, the ‘right to life’, if it is indeed an independent right, must be an ‘absolute’ right. If that entails contradiction to Art. 37 Sec. 2 of the Constitutional, it follows that we cannot substantiate ‘right to life’ by means of interpretation. Third, it follows from Art. 110 Sec. 4 of the Constitution that we cannot say that ‘our constitution doesn’t allow any case in which penalty by death can be sentenced’. Fourth, the Court opinion of the present case is not proper in its denying that the principle of ‘prohibition from essence-violation’ (hereinafter PEV) is independent from the principle of ‘prohibition from excessive restraint’ (hereinafter PER). Fifth, the opinion of Justice Jong-Dae Kim does not give any explanation why the constitutional dictate that “the essence’ of a basic right shall not be violated” applies differently as to (1) rights that are consisted of its essence only and (2) other rights. Sixth, Art. 37 Sec 2 of the Constitution cannot be properly construed to contain both PEV and PER at the same time. Seventh, should there be a future constitutional amendment, it would be appropriate to (1) amend the clause “only when necessary” to “insofar as is necessary”, and (2) delete the whole 2nd sentence.