형법각칙상 징역형의 문제점과 개선방안

Abstract

In this paper, the problems of the statutory terms of imprisonment of the Korean Criminal Code are analysed and some reform measures are suggested. Generally speaking, the statutory terms of imprisonment of current Korean Criminal Code are too severe to comply with the principle of responsibility. This can be easily proved from the comparative study between the korean statutory terms of imprisonment and those of some european countries such as Germany, Austria and Swiss, which have so called a continental legal system like Korea. The first and urgent solution is to revise the article 42 of the Korean Criminal Code, in which it is prescribed that the terms of imprisonment should be 30 years or in aggravating cases 50 years. In the reforming process of Korean Cirminal Code which has been going along since 2007, the terms of imprisonment must be lowered to 15 years or in aggravating cases 25 years. The second solution is to abolish or to restrict the combined offences the purpose of which is to lengthen the terms of imprisonment than punishing them as the concurrent offences. The third solution is to add a fine to the offences, to which only the imprisonment are imposed by the current Korean Criminal Code. The conclusion of this paper is that the subsidiarity principle of criminal law shoul be strictly obeyed in prescribing or reforming the terms of imprisonment.