비인간적이고 잔혹한 형벌의 의미: 미국수정헌법 제8조와의 비교

Controversial multiple security-measures are imposed after the term of imprisonment in South Korea. In these circumstances, the inhibition of inhuman and cruel punishment as the limiting principle on punishment and punitive security-measures are meaningful differentiated from liability principle and principle of no penalty without a law. In comparison to the eighth amended constitution text which is similar but not same, the meaning of inhuman and cruel punishment can be summarized as three characteristics. First, it is necessary to interpret the authentic meaning of the universality of inhuman punishment. Inhuman punishment of South Korea is different from unusual one of the U.S.A., and this is connected with the difference between the fundamental decency as human of South Korea and the evolving standards of decency of the U.S.A. Second, cruel punishment is the core phrase in analytical perspective. This phrase is the specification of inhuman punishment or fundamental decency as human. This is the expression of not intent but effect, and it can also include not only physical pain but also mental pain plus the intentional imposition of unnecessary and unjust pain. Third, the judgment whether the punishment is inhuman and cruel or not can be differentiated according to categories. To now on, the focus has been on the punishment of specific crimes, but the focus need to be changed into the state or condition of criminals to use categorical reasoning.