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Unconstitutionality of the Death Penalty and Global Trend

  • DONG-A LAW REVIEW
  • 2009, (45), pp.263-298
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

HOH ILTAE 1

1동아대학교

Candidate

ABSTRACT

There are 197 independent countries in the world. 94 countries of them have abolished the death penalty for all crimes in law. 10 countries have abolished the death penalty for ordinary crimes. Moreover, 35 countries which are acknowledged to be abolitionists from Amnesty International have abolished the death penalty in practice because they have not executed a death penalty for ten years. Therefore, 139 countries have abolished the death penalty in law or practice. But the death penalty was abolished in 63 countries 13 years ago. These changes mean that 66 countries that is more than 63 countries in 1996 are newly added in the list of abolitionists. In the most of the abolitionists in law, legislatures have abrogated the laws that prescribed death penalty. In some countries, the death penalty was abolished by Constitutional Courts. For example, Hungary and South Africa are the typical counties that have abolished the death penalty with unconstitutional decision of the Constitutional Courts. On the contrary, 58 countries only retain the death penalty. I infer that many of the retentionists will abolish the death penalty in law or practice in the not-too-distant future. Because the number of countries that execute the death penalty in practice are less than half of the members in 58 countries, and 6 countries of them have not condemned to death at all. Every year, at least from two or three at the maximum to five or six countries take a turn in abolishing the death penalty. On the basis of these facts, we can expect that the number of the retentionists will be in the minority in about 20 years. Constitution of the republic of Korea avows human dignity, specifying the invulnerableness and the prohibition of violation of the essential aspect of the freedom or right. It finds the universal acceptance that the basis of human dignity is in the right to live. The country should have guaranteed the human dignity by the guarantee of Constitution, the country retains the death penalty which violates human dignity with the nation's rights of punishment and especially deprived of the life that is unacceptable from the view of Constitution. In addition, the death penalty is cruel, inhuman and degrading punishment. In conclusion, I think that the Constitutional Court of the republic of Korea should determine that the death penalty allowed on the existing law is unconstitutional punishment as legislation or decisions of Constitutional Courts of other countries. With the global trend of the constitutions for the death penalty, it should be adjusted logically to meet the valuable human rights in the republic of Korea.

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