집행유예제도의 입법론적 검토와 개선방안 = The Lawmaking Theory's Examinations andSchemes for Improvement on a Stay of Execution

다국어 초록 (Multilingual Abstract)

The Lawmaking Theory's Examinations and
Schemes for Improvement on a Stay of Execution

Gi, Young-Hwan / Cho, Haeng-Nan

The research objective of this thesis is to examine and assess reasons of effectiveness and abrogation about a stay of execution within the framework of the lawmaking theory, and based on such analysis, to suggest schemes for improvement on the requirements and effectiveness in a stay of execution.
Following these research objective, the results of this thesis analyzed as below.
Firstly, in case of the short-term penalty under 6 months, a stay of execution should be sentenced without any exceptions. Up to the length of the penalty, the preconditions for a stay of execution can be decided. It is desirable to include the order to restore the status quo in a stay of execution so that the victim can satisfy the desire to return to the original status.
Secondly, a stay of execution in case of a monetary penalty should be accepted, but though a stay of execution is not desirable in case of free penalty, it is necessary in case of monetary penalty.
Thirdly, the repeated stay of execution during the first stay of execution should be acknowledged for once, and the regulations on the withdrawal of a stay of execution resulting from the disqualification identified later should be deleted. There should be the possibilities to replace the withdrawal of a stay of execution with the expansion of probation term, the additional imposition of social service, etc.. Furthermore, when a stay of execution is cancelled, the already performed services should be acknowledged in the pronounced sentence.
In conclusion, the present law under which the pronounced sentence loses its legal effect if the accused keeps the granted term on probation, is considered to be desirable.

참고문헌 (Reference)

1 "형의 집행유예에 관한 연구 한국형사정책연구원보고서" 1992

2 "집행유예제도의 개선방안에 관한 연구" 2005

3 "집행유예제도 : 입법론적 비판과 대안" 한국형사정책학회 13 (13): 2001

4 "재산형의 문제와 개선방향" 1990

5 "자유형제도의 개선방안 한국형사정책연구원연구보고서" 1994

6 "일부집행유예제도와 ‘short sharp shock’" (9) : 1997

7 "선고유예의 요건판단과 상고이유" 한국형사판례연구회 12집 : 2004.7.10

8 "보호관찰 유예제도의 개선방안 -선고유예와 집행유예의 개선방안-" 한국형사법학회 (22) : 2004

9 "대판 2003.3.20, 2001도6138 전원합의체 판결" 2003

10 "대판 2001.6.27, 2001모135" 2001

11 "경향신문, 2006년 8월 17일자" 경향신문 6-, 2006

12 "“형벌제도의 개선방안 형사재판제도의 개선" ” 한국사법행정학회 (374) : 1992

13 "“현행 집행유예제도와 형법개정안" (18) : 1993

14 "Teilaussetzung bei Freihiets- und Geldstrafen"

15 "Strafaussetzung zur Bew？hrung und Bew？hrungshilfe" 1964

16 "Aussetzung des Restes der Ersatzfreiheitsstrafe nach ？57 StGB?"