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Horizons and Prospects of Alternative Penalty after Death Penalty Abolition

  • Journal of Human Rights Studies
  • Abbr : JHRS
  • 2024, 7(2), pp.263-302
  • DOI : 10.22976/JHRS.2024.7.2.263
  • Publisher : Korean Association of Human Rights Studies
  • Research Area : Social Science > Law > Law of Special Parts > Human Rights / International Human Rights Law
  • Received : November 15, 2024
  • Accepted : December 20, 2024
  • Published : December 31, 2024

Kim, Dae Keun 1

1한국형사법무정책연구원

Accredited

ABSTRACT

Recently, in the context of a penal state or a punitive society, the introduction of life sentences without parole, so-called absolute life sentences, is a hot issue. Usually, absolute life imprisonment has been discussed as a measure after the abolition of the death penalty, but the life sentence without parole recently announced by the Ministry of Justice exists at the same time as the death penalty. In addition, the life sentence without parole, which has been announced in legislation, is not a type of sentence (Article 41) in the Criminal Law, but rather a burden of judgment on judges by stipulating in the period of imprisonment or imprisonment (Article 42), and at the same time imposes a legislative act (law formation) rather than an interpretation of the law. In addition to conflicting with the principle of legality and separation of powers, there is a big problem in that it can even obscure the purpose of the current parole system. At this point, we need to look at the theoretical horizons of alternative punishments for the death penalty. Alternatives to punishment that are not depriving lives include absolute and relative life sentences, life imprisonment, and life imprisonment (with an upper limit on the period) depending on the degree of deprivation.Here, life imprisonment is divided into ‘absolute life imprisonment’ and ‘relative life imprisonment’, and the distinction between relative life imprisonment and life imprisonment is sometimes a problem. Relative life sentences are characterized by a long minimum period of service and exceptional parole compared to life sentences. The current life sentence is little different from the relative life sentence in operation in that parole is exceptional. A life sentence without parole violates the essential content of human dignity and freedom and rights, as established by the Federal Constitutional Court of Germany, the European Court of Human Rights, and the recent Supreme Court of Canada. The effectiveness of crime prevention cannot be verified, and correction management problems can be serious. Above all, there is no practical benefit to legislation in that it is possible to operate a life sentence without parole even under the current system. Then, what should be the form of a rational and systematic alternative punishment for the death penalty. Excluding freestyle, where the upper limit of the period is set in consideration of the public's legal sentiment, there are mainly life imprisonment sentences under the current Korean law or life imprisonment sentences that allow the possibility of parole to be examined with a minimum period of service. Some may consider compromising the relative life sentence (for existing death sentences) while using the current life sentence as a principle.

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