보통살인죄의 입법경위와 개선방안 -일본 개정형법가안과 관련하여-

The article 250(1) of Korean Criminal Act states that a person who kills another shall be punished by death, or imprisonment for life or for at least five years. The author studies the article and legal provisions providing for death penalty from a historical perspective. Under our Criminal Act, the homicide hasn’t been divided into murder and manslaughter. The article was influenced by the revision draft of Japanese Criminal Code. In German Criminal Act, the homicide is divided into murder and manslaughter. Homicide is simply the killing of one person by another. Murder is the homicide committed with “malice aforethought.” Manslaughter is treated as a much less severe crime than murder. The article was so widely legislated that the judge could have a certain descretionary power to determine sentence for the defendant from death penalty to imprisonment for five years. A death penalty clause is included in the article as a type of criminal penalty. The article especially has been disputed about whether it is constitutional or not. Therefore, he suggests that the clause should be complemented as follows. Firstly, there is no denying that sentencing should be fair and objective to achieve criminal justice. In sentencing stage, not only the standards for applying the term of imprisonment should be transparent but that of life imprisonment be clear with no unwarranted disparity. Secondly, it is proper for death penalty to be eliminated from article 250(1) of Korean Criminal Act. Also, instead of death penalty, the introduction of life sentence without parole should be considered. Lastly, the constituents of the article could not be the same as that of the German Criminal Act. Moreover, he proposes that it would be improved by applying the well determined factors of sentencing guidelines concerning the article.