「사면법」 개정의 지평과 전망 - 특별사면을 중심으로 -

Criticism persists that the President's special pardon power is being arbitrarily abused, undermining the rule of law. This study examines the constitutional significance and historical evolution of the pardon system, conducts a comparative analysis of pardon systems in major countries such as the United States, the United Kingdom, and Germany, diagnoses the problems of the current system, and proposes reasonable improvement measures. Our Constitution grants the President the authority to grant pardons, commute sentences, and restore rights. While general pardons require National Assembly approval, special pardons can be granted solely based on the review of the Pardon Review Committee and the recommendation of the Minister of Justice. The pardon power must adhere to the constitutionally inherent limitations of the separation of powers, the principle of equality, national interest, and national harmony, and is regulated by the Pardon Act in accordance with the principle of legal reservation. However, frequent instances of exceeding these limits have become problematic. The issues with Korea's current pardon system are: First, large-scale pardons for the president's close associates, chaebol executives, and powerful figures involved in corruption are routinely issued with each change of administration. This creates a disconnect with public sentiment regarding justice and perpetuates a vicious cycle of corruption. Second, the indiscriminate use of pardons undermines the judiciary's authority, eroding the rule of law. Third, the Pardon Review Committee, organized under the Ministry of Justice, lacks independence and fails to perform substantive oversight functions. Fourth, the committee's meeting records are only disclosed after five years, leading to a lack of transparency and accountability in the review process. Fifth, there are insufficient means to control the exercise of the pardon power. The President's special pardon power must reflect the demands of the times and is an important constitutional authority that promotes social integration. Therefore, rather than abolishing or excessively restricting the pardon power itself, it is desirable to strengthen procedural controls. First, diversify the composition of the Pardon Review Committee by having the Supreme Court, the National Assembly, and the President each recommend three members, and ensure that civilian members constitute a majority to enhance independence. Second, elevate the committee from under the Ministry of Justice to under the President to clarify presidential accountability for exercising the pardon power. Third, shorten the disclosure period for the committee's meeting minutes from five years to six months to enhance transparency and accountability in the review process. Fourth, Article 1 of the Pardon Act should explicitly state “promoting social integration and the public interest” to reestablish the institutional purpose. Through these improvements, we expect special pardons to function as a rational system serving the public good rather than arbitrary favors, restoring public trust and achieving genuine social integration.