[Takryucheongron - Death Penalty] Crime Prevention Effect Unclear... Irrecoverable in Case of Wrongful Conviction

Junwoo Kim, Attorney at Deoksu Law Firm

There are various theoretical debates surrounding the retention of the death penalty.

First, from the perspective of criminal policy, there is the view that the death penalty cannot be abolished because of its utility. The death penalty is considered a "necessary evil" devised from the fear of death and the desire for retribution against crime. Above all, due to its strong deterrent effect, the general crime prevention effect must be taken into account.

However, various studies have revealed that such claims are not empirically supported. The UN has also submitted reports stating that it is unclear whether the death penalty is a more effective crime prevention measure than life imprisonment. Moreover, it is questionable whether the death penalty, a cruel punishment, can be unconditionally justified solely on the grounds of deterrence. If deterrence were the key criterion, inhumane punishments such as castration, dismemberment, flogging, and burning at the stake, which have disappeared from history, would need to be revived.

Second, there is the argument that, in light of constitutional theory, it is difficult for the Constitutional Court to declare the death penalty unconstitutional. The basic framework of this position is that although our constitution recognizes the right to life as a fundamental right, it does not acknowledge it as an absolute fundamental right. Therefore, if the death penalty is used cautiously within a very limited scope, it does not violate the constitution. In fact, the Constitutional Court has, on several occasions, ruled certain death penalty provisions in special criminal laws unconstitutional for violating the principles of equality or proportionality.

However, this approach also contains logical contradictions. Of course, all fundamental rights stipulated in our constitution are not absolute, and restrictions on fundamental rights by law are possible for public necessity. However, due to the nature of the right to life, some restrictions are impossible, and executing the death penalty results in permanently depriving that right. Ignoring the fact that the essential content of the right to life is infringed by the death penalty, and affirming the constitutionality of the death penalty solely based on the reservation of general laws and the principle of proportionality, is difficult to justify.

The third issue is the possibility of wrongful convictions. Proponents of retaining the death penalty argue that wrongful convictions are an inevitable limitation of all penal systems and are not unique to the death penalty. They suggest that the problem should be addressed through improvements such as various appellate and retrial systems.

This view deliberately overlooks that once the death penalty is executed, the result is irreversible and that damages cannot be remedied even through retrial systems. The possibility of wrongful convictions still exists under modern judicial systems.

Meanwhile, Article 110, Paragraph 4 of our constitution contains a provision that allows the military court to impose the death penalty in special cases, which leads to the argument that the constitution permits the death penalty. Since this argument is based on a provision in the constitutional text, it cannot be dismissed outright. Although the author is an abolitionist of the death penalty, he believes it is inevitable to listen to such arguments within the framework of the current constitution. In other words, legislation allowing the military court to impose the death penalty under the circumstances stipulated in Article 110, Paragraph 4 may be permissible. However, it is not believed that a universal principle permitting the death penalty in general courts during peacetime can be derived solely from this single provision.

Finally, there is the argument that the death penalty issue should not be decided by the Constitutional Court but resolved through legislative decisions. This points out the limits of constitutional adjudication while cautioning against the judicialization of politics. The author also believes that it is much more desirable for the death penalty issue to be decided legislatively by the National Assembly rather than by the Constitutional Court. So far, eight bills to abolish the death penalty have been proposed in the National Assembly. Here are the names of some politicians who were involved in proposing these bills: Moon Jae-in, Park Byeong-seok, Lee Nak-yeon, Chung Sye-kyun, Kim Boo-kyum, Song Young-gil, Kim Jong-in, Na Kyung-won, Joo Ho-young, Won Hee-ryong, Yoo Seung-min, Ahn Cheol-soo.

Kim Jun-woo, Attorney at Law, Deoksu Law Firm

This content was produced with the assistance of AI translation services.