사형제도에 대한 연구 -일본의 현상과 문제점- (A Study on Death Penalty - Actual condition and problem from Japan -)

서지정보

· 발행기관 : 한국형사정책학회
· 수록지 정보 : 형사정책 / 22권 / 1호 / 293 ~ 316페이지
· 저자명 : 이덕인

초록

Today, more than 60 years after the Supreme Court of Japan first ruled that the death penalty itself and the execution means were constitutional, we need to think whether Japan is the society in the future when the precedent was planning to abolish the death penalty, or not. In this precedent, the Supreme Court said that life was high and noble and one person's life was heavier than the earth. Also, as it decided that the death penalty was not brutal judging from the circumstances of the day of the court's decision, it clarified that the death penalty must be seen as 'an brutal punishment' in the case that the execution means etc were brutal from humanitarian point of view judging from the time and circumstances. And, it said that a legislation for brutal punishments was against the mind of Article 36 of the Japanese Constitution. By the way, there is the 'brutality' of the crime by the defendant, in the standards for permitting the death penalty. Namely, the brutality of a criminal and national punishments that are planning to punish him are doubly interlinked in the death penalty. But, because making a judgement about the brutality of the crime by the defendant is extremely subjective and lacks in objectivity and the standard gap among each case is too big, it can be said as the examination factor of an offense which is empty of justice. Also, the brutality of national punishments is not absolute and value-free but a concept which is changed by the time and circumstances. So, I think that making a judgement about indetermination by indetermination is inconsequent and can't be the basis of the existence of the death penalty.
Just like our society, the execution of the death penalty in Japan has the principle of secrete practice. Although people who don't directly witness the moment, ending one's days on the gallow, may argue that it is not brutal, condemned criminal on the gallow doesn't die by being throttled but he ends his life in the unimaginably horrible pain with the broken cervical spine. Today, it is a common sense in civilized societies that no execution means of the death penalty could be humanitarian and reduce pain. Basically, half century after the suggestion of the constitutional decision in Japan, today's situations at the time and circumstances widen the subjects and the ranges of the human right and the dignity of human. Even if a condemned criminal, we cannot deny he is a humans except for the fact that he is forced to offset his responsibility about a crime by his death. So, Japan should recollect their proud Heian period that daringly deleted the death penalty in the punishment list, than conceal it at the back of today's distorted fear of a crime and use it as an instrument of ruling for national management.

영어초록

Today, more than 60 years after the Supreme Court of Japan first ruled that the death penalty itself and the execution means were constitutional, we need to think whether Japan is the society in the future when the precedent was planning to abolish the death penalty, or not. In this precedent, the Supreme Court said that life was high and noble and one person's life was heavier than the earth. Also, as it decided that the death penalty was not brutal judging from the circumstances of the day of the court's decision, it clarified that the death penalty must be seen as 'an brutal punishment' in the case that the execution means etc were brutal from humanitarian point of view judging from the time and circumstances. And, it said that a legislation for brutal punishments was against the mind of Article 36 of the Japanese Constitution. By the way, there is the 'brutality' of the crime by the defendant, in the standards for permitting the death penalty. Namely, the brutality of a criminal and national punishments that are planning to punish him are doubly interlinked in the death penalty. But, because making a judgement about the brutality of the crime by the defendant is extremely subjective and lacks in objectivity and the standard gap among each case is too big, it can be said as the examination factor of an offense which is empty of justice. Also, the brutality of national punishments is not absolute and value-free but a concept which is changed by the time and circumstances. So, I think that making a judgement about indetermination by indetermination is inconsequent and can't be the basis of the existence of the death penalty.
Just like our society, the execution of the death penalty in Japan has the principle of secrete practice. Although people who don't directly witness the moment, ending one's days on the gallow, may argue that it is not brutal, condemned criminal on the gallow doesn't die by being throttled but he ends his life in the unimaginably horrible pain with the broken cervical spine. Today, it is a common sense in civilized societies that no execution means of the death penalty could be humanitarian and reduce pain. Basically, half century after the suggestion of the constitutional decision in Japan, today's situations at the time and circumstances widen the subjects and the ranges of the human right and the dignity of human. Even if a condemned criminal, we cannot deny he is a humans except for the fact that he is forced to offset his responsibility about a crime by his death. So, Japan should recollect their proud Heian period that daringly deleted the death penalty in the punishment list, than conceal it at the back of today's distorted fear of a crime and use it as an instrument of ruling for national management.

참고자료

· 없음