【作者简介】
赵炳宣，单位为韩国清州大学。付强，单位为《法学杂志》编辑。赵秉志，单位为北京师范大学。
【注释】截至本文见稿，2010年，这已经是死刑中止执行的第13年。2007年12月当中止执行通过十年的关口的时候，大赦国际认定韩国已经“基本上废除了死刑”，因为自从1997年12月处决23人以后韩国再也没有执行一起死刑。约翰逊和Zimring视韩国为实质上废除了死刑。见David T. Johnson and Franklin E. Zimring, The Next Frontier: National Development, Political Change, and the Death Penalty in Asia, New York: Ox-ford University Press, 2009，p. 16 (Figure 2. 1).
1998年二月当金大中当选总统时（他本人也曾被判死刑但后来被赦免），韩国开始实行非正式死刑执行中止。
见Cho, Byung-Sun, “The Death Penalty in South Korea and Japan:‘Asian Values’ and the Debate about Capital Punishment？” In PeterHodgkinson and William A. Schabas, eds.，Capital Punishment: Strategies for Abolition. Cambridge: Cambridge University Press, 2004，253-272.
See Cho, Byung-Sun, “South Korea’s Changing Capital Punishment Policy: The Road from De Facto to Formal Abolition.”Punishment andSociety 10: 171-205 (2008)．
Justice Minister Lee Kwi-Nam hinted at resuming utions for those convicted of “capital crimes,”breaking a 13-year-old virtual moratori-um on the death penalty, Tuesday. '' I am considering setting up an ution facility at this prison,”Lee told reporters during a visit to Cheongsong Pris-on, Gyeongsang Province, where serial killers, murderers and repeat rapists are imprisoned. “The purpose of such a facility is to carry out the death sen-tence,”said Lee, whose signature determines whether death row inmates are uted. However, the minister added that the resumption of the death penal-ty will be reviewed with caution, taking into consideration factors such as diplomatic relations and concerned parties nationwide. Lee’s remarks followed therecent case involving a 13-year-old schoolgirl, identified as Lee, who was abducted, raped and murdered allegedly by convicted rapist Kim Kil-tae.
2008 Heon Ga 23. The ruling came after a request was filed by a 72-year-old fisherman who was sentenced to death for the premeditated mur-der of four tourists in Boseong, South Jeolla Province, in 2007. The man, whose case is now pending at an appellate court, filed a petition with the courtin 2008，calling capital punishment a measure brazenly denying dignity and the value of human life.
Law No. 8730 of 21 December 2007 (full revision)．When the full revision should be emphasized, it can be cited as‘the Revised CPA.
今日韩国有一个高级阶段的民主结构，地方议会自由民选，国家政府三权分立。韩国的体制是一元制民主、共和、总统制政府。总统为人民直选，只任一届五年任期，对中央政府有广泛的权力。
Law No. 7623 of 29 July 2005.
Law No. 9820 of 2 November 2009.
Law No. 5454 of 13 December 1997.
See Kang, Seok-Gu and Kim, Han-Gyun, Sahyeongjedo-ui hamnijeok chuksojeongbi bang-an( Proposal of rational limitation of capitalpunishment)，Seoul： Hanguk hyeongsa jeongchak jeonguwon(Korean Institute of Criminology Press)，2005，pp. 136-57.
Source from Correctional Bureau of the Ministry of Justice.. Lee Tae-Hi, “ Sahyeongjedo-wa gyodo haengjeong jeongchaik semina toron jaryo（Materials for the discussion at the seminar on the death penalty and correctional administration）”in: Park, Seon-Yeong （ed.），Sahyeong jedo-wagyodo haengjeong (The death penalty and correctional administration) (Seoul: Park Seon-Yeong A Member of National Assembly, 2009)，p. 68. Seeinfra Table 4. The total number of inmates with finalized death sentences was 64 till December 2007，but the former President Rob Mu-Hyun commuted6 inmates in December 2007.
The Constitutional Court handles the constitutionality of law. Three factors are necessary to deem an issue of a law’s constitutionality a precondi-tion of a court’ s judgment: first, a concrete case is pending before the court, second, a law applies to the concrete case and third, whether the law’ sconstitutionality affects the outcome of the decision.
Decision of 28 November 1996, 2002 Heon Ga 5，Panryejip（Constitutional Court Case Report） Vol. 14 No. 2, 600. Article 13 of the NationalSecurity Act stipulated that should a person, who has already been convicted for a violation of the Act, violates the Act again, he or she may be sentencedto death.
Although Professor Kuk Cho emphasized the issue of the proportionality of punishment in that case, the Constitutional Court’ s argument wasmainly the issue of the principle of legality, nullum crimen sine lege. See Cho, Kuk, “Death Penalty in Korea: From Unofficial Moratorium to Aboli-tion？” Asian Journal of Comparative Law Vol. 3 No. 1，21(2008)．
Law No. 8727 of 21 December 2007.
Decision of 27 November 2003，2002 Heon Ba 24. The Article stipulated that those convicted of the offense of purchasing or possession of drugsfor the purpose of selling are to be sentenced to death, life imprisonment or over 10 years’ imprisonment.
Decision of 29 November 2007，2006 Heon Ga 13，Panryejip (Constitutional Court Case Report) Vol. 19 No. 2, 535.
See Cho, Byung-Sun (footnote 4 )，178-79 Table 2.
In criminal cases, an appeal to the Supreme Court may be made on the following grounds: 1）a violation of the Constitution, law, order, or reg-ulation material to the judgment of the lower courts; 2) the abolition, alternation, or excuse of penalty after the judgment has been rendered by the lowercourts ; 3 ) existence of a reason to request for a review; or 4) a grave error in fact-finding or extreme impropriety in the sentencing where the death pen-alty, a life imprisonment, or an imprisonment of more than 10 years has been imposed. In the Supreme Court, either the Grand Bench composed of theJustices sitting en bane or the Petty Benches, each usually composed of three or four Justices, preside over the cases.
Decision of 11 June 1985，85 Do 926.
Decision of 13 June 2003, 2003 Do 924.
See Cho, Byung-Sun (footnote 4 )，190-95 Table 10 and 11；Johnson and Zimring (footnote 1)，p. 186 Figure 5.4.
Law No. 8270 of 26 January 2007.
Jeonkwan means ‘former judges and prosecutors’ and Yewu means‘giving special consideration to certain people. The practice consists of af-fording preferential treatment during litigation to recently retired judges. Despite official denial by the Korean judiciary, the Korean public widely believesthat the practice of judicial cronyism is quite damaging to a fair trial. The practice operates as follows: a recently retired judge who files suit as a privateattorney receives favourable treatment from the courts during the legal process. Although such preferential treatment raises questions about impartiality, theKorea legal profession has nonetheless long accepted this unethical practice. Because of the high probability of a favourable outcome, former judges cancharge fees significantly above normal rates and, in so doing, make a considerable sum in a short time after retirement. This cronyism pressures Koreanjudges,by custom, to help former colleagues in this way.
Decision of 27 November 1997, 97 Heon Ma 60. The Old Article 35 of the CPA states that “defense counsel may review and copy the relevantdocuments or evidence after the prosecution is filed.”Prior to the decision, prosecutors had refused to allow defense attorneys to access the records, argu-ing that access is possible only after a trial is open because access before the trial would weaken prosecution’ s cases. The Court held that“he defenseattorney’ s access to the investigative records kept by prosecutors is indispensable to maintain the substantial equality between parties and materialize fastand fair trial. Excessive limitation on the access violates the defendant’s right to fast and fair trial and right to counsel.”
Decision of 27 March 2003，2000 Heon Ma 474.
Decision of 13 Nevember 1998，96 Do 1783，‘so-called dentist and her daughter murder case.’
See weekly magazine‘Hangyeore 21’，25 February 1999 (No. 246 )，p. 6. This decision was criticized by a criminal law professor, Kim II-Su.
Decision of 8 Octorber 2009, 2009 No 240.
As for selected criminal cases, lay participation trials will be implemented on a pilot basis from January 2008.‘Lay Participation Committee’(tentatively named) to be formed in 2010, will be composed of members from legal probationers, academia, and NGO groups. The Committee will designa final form of Lay Participation System to be implemented starting 2012, utilizing the evaluations from the Pilot system. Lay Participation will be appliedto serious criminal cases at first. Applicability of the Lay Participation System to other types of cases will be determined after reviewing the Lay Participa-tion''s application to criminal cases. The final form of the lay participation trials particularly suited for the Korean judiciary is planning to be launched by2012.
During the one-year period of January 2008 through January 2009 since the inception of the jury system in South Korea, among approximately2, 500 of potential cases (i. e.，those cases where the defense could request or could have requested jury trial)，the defense requested jury trial in 249 ca-ses or less than 10％ of the possible cases. Among 249 cases where the defense requested jury trial during the above period of time, the court decided notto provide a jury trial in 61 cases (24.5％ denial rate)．See Judicial Statistics, the Supreme Court of the Republic of Korea
http://eng>. scourt. go. kr/eng/resources/statistics. jsp)；Cho, Byung-Sun, translated by Yamana, Kyoko, “ One and half hours experience of Korean lay participation trail sys-tem: Its current situation and evaluation” Kansai University Law Journal Vol. 59 No. 5，90-128 (2010)(in Japanese).
See Cho, Byung-Sun (footnote 29 )，90-128.
Especially the Act for the Punishment of Sexual Violence Crimes and Protection of Victims ( law No. 8059 of 2006, last revised on 27 October2006, as Law No. 8059) introduced an expanding protective system for sexual violence victims.
Law No. 7766 of 29 December 2005.
The posthumously acquitted eight individuals-Woo Hong-Son, Song Sang-Jin, Do Ye-Jong, Yeo Jeong-Nam, Kim Yong-Won, SeoDo-Won, Ha Jae-Wan and Lee Sub-Yeong-were uted at 6:00 a. in. on April 9, 1975，‘just 18 hours’ after the Supreme Court sentencedthem to the death penalty on April 8，1975. Thus the day was afterwards called‘the black day in the Korean courts history’or‘the day of court mur-der.’
According to the CPA (Art. 463)，the minister of justice has right to order ution. However, in practice the president was consulted beforethe ution order of the minister of justice and especially under Park’s regime the then-president Park as a dictator directly ordered the ution.
In December 2005, a Seoul Central District Court ordered a retrial of the case after a presidential truth commission found no evidence that theeight defendants were guilty, and that the students were also tortured into making false confessions. The commission also found official documents showingthat the government had issued orders to ute the activists hours before the Supreme Court announced its verdict. Since the announcement of commis-sion on 11 September 2002, relatives of the victims had demanded a retrial for years, claiming that the state intelligence agency framed the suspects withfalse charges. An internal National Intelligence Service (NIS) probe also concluded that its predecessor, the Korea Central Intelligence Agency, manipu-lated two cases involving Inhyeokdang on the orders of former President Park Chung-Hee, who was facing increasing demonstrations from activists andcollege students against his dictatorship. The report of the truth commission was summarized in Chosun Ilbo (Chosun Daily Newspaper) of 12 September2002.
In its ruling, the Seoul Central District Court cleared the uted dissidents of all charges, including violation of the National Security Law andthe Anti-Communism Law and treason charges for plotting to overthrow the government. The court concluded that the prosecution’ s interrogation recordsand the defendants’ written testimonies could not be held accountable as evidence, since intimidation, coercion and other forms of mistreatment are sus-pected to have been trade against the detained. The court also said that the prosecution failed to prove that the defendants were involved in organized ac-tions in a plot to overthrow the government.
Decision of 19 September 1967，67 Do 988.
Decision of 19 September 1969，69 Do 988.
Decision of 12 June 1987, 87 Do 1458.
Decision of 28 November 1996, 95 Heon Ba 1，8-2 Panryejip (Constitutional Court Case Report) Vol. 8 No.2, 537，595. Before the 1996ruling, already twice constitutional petition against capital punishment was instituted in 1989 (89 Heon Ma 36)，and in 1990 (90 Heon Ba 13)，but twopetitions were dismissed by Constitutional Court. In the Case Number of ‘89 Heon Ma 36,’the number ‘89’indicates the year,‘Heon Ma’ refers tothe jurisdiction classification, and ‘36’ is a serial number of each case.‘Heon Ma’ refers to a constitutional petition according to Article 68（1）of Con-stitutional Court Act ( review over the violation of constitutional rights)，‘Heon Ba’ refers to a constitutional petition according to Article 68 (2) of Con-stitutional Court Act ( review over the constitutionality of laws)，and‘Heon Ga’ refers to a review of constitutionality of laws . When it becomes necessaryfor the ordinary court to ascertain the constitutionality of any statute or provision thereof before applying such laws to a pending case, the ordinary courtmust request the Constitutional Court, on its own initiative or upon the motion of any party to the original case, to have the law’ s constitutionality，－viewed. According to Article 68（1），anyone whose fundamental rights guaranteed by the Constitution have been infringed through the exercise or non－exercise of governmental powers may petition the Constitutional Court for relief（‘Heon Ma’）．If a legislative act, presidential decree, ordinance or otherlaw directly infringes upon an individual’ s fundamental rights, the individual may file a Constitutional Petition against the law itself. Another kind of Con-stitutional Petition is prescribed in Article 68 (2 )．Any part to an ordinary court proceeding, whose motion for referral to the Constitutional Court for ajudgment on the constitutionality of a law was rejected by the court of original jurisdiction, can have recourse in the Constitutional Court to receive finaljudgment on the law’s constitutionality. This avenue is available in case the ordinary courts do not request a judgment of the constitutionality of a law by the Constitutional Court even though the law is suspected to be unconstitutional（‘Heon Ba’）．
Decision of 25 February 2010, 2008 Heon Ga 23. On the case in detail, see footnote 6.
Law No. 9136 of 11 December 2008.
See Cho, Byung-Sun (footnote 4)，171-205.
Article 8 of the Public Prosecutor’s Office Act states that the Minister of Justice may‘generally’ direct and supervise public prosecutors but for‘specific cases’ can only direct and supervise the Prosecutor General. Thus, in order to secure the independence of public prosecutors from political in-fluences, the role of the Prosecutor General in Korea is extremely important in the criminal justice system. So, the term of the Prosecutor General shall be2 years, and he shall not be re-appointed, and he shall not promote or join any political party within a two-year period after he retires from office
law No. 8717 of 21 December 2007.
See Cho, Byung-Sun (footnote 3)，p. 271 footnote 84; Cho, Byung-Sun (footnote 4)，197 note 4.
See Johnson and Zimring （footnote 1），p. 176; Cho, Byung-Sun (footnote 4 )，171-205. According to the Newspaper Hankyoreh of 31 De-cember 2009 the number of commuted inmate on the death row is 11. 5 persons on 13 August 1999 , 2 persons on 15 August 2000 and finally 4 personson 31 December 2002.
Law No. 8721 of 21 December 2007.
See Newspaper Hankyoreh of 31 December 2009，p. 4.
Supreme Court, Decision of 4 March 1991，90 Mo 59.
Decision of 29 October 2009，2008 Hein Ma 230.
See Lee, Ho-Jung, "Sahyeongmigyeolsu-ui ingwon-gwa gyodohaengjeong-ui seonjinhwa（Human rights of inmates on death rows and theimprovement of penal administration）”in: Park, Sewon-Yeong (footnote 9)，pp. 15.
See Yoon, Dae-Kyu, Korean Development of Democracy and Law, Seoul: Korea Legislation Research Institute Press, 2008，pp. 99.
In a speech given in 2007 in appreciation of the ten-year moratorium on utions that Kim told that his efforts failed due to obstinate resist-ance of related authorities. See Johnson and Zimring （footnote 1），p. 177.
See Cho, Byung-Sun (footnote 4)，171-205.
See Cho, Byung-Sun (footnote 4)，196 Table 12. Detentionists are 60％ in average.
GA Res 44/128, UN GAOR, 44th Sess，Supp. No. 49, UN Doe A/44/49（1989），207. See Cho, Byung-Sun, “International Covenanton Civil and Political Rights（ICCPR） and the Second Optional Protocol to the ICCPR on Death Penalty” in: The Vietnam-EU Death Penalty Seminar,Hanoi: the Danish Institute for Human Rights, 2004，pp. 16-26.
See Lim, Ji-Bong, “Honbopjok Kwanjomeseobon Kukhoeui Tonguirul Yohanun Chojak-Taehanminkukui Kyungurul Chungsimuiro (TreatiesRequiring the Consent of the Legislature in the Perspective of Constitutional Law-Forcusing on the Korean Case)”，Kukjebop Tonghyanggwa Silmu(Tendencies and Practice of International Law) Vol. 3 No. 1(2004)，pp. 110-11，118; Kim, Cheol-Su, Heonbophak Kaeron (Introduction to Con-stitutional Legal Science)，Seoul: Pak Yeong Sa, 2004, pp. 247-48; Heo, Yeong, Hanguk Heonbopron（Essays on Korean Constitution），Seoul: PakYeong Sa, 2004，pp. 170-71. This prevailing view was criticized by Seong, Chae-Ho, “Kukjejoyakgwa Kuknaebopui Kwangyee Kwanhan SiltaejokKochal（Practical Review over the Relationship Between International Treaties and Domestic Laws）”，Kukjebop Pyeongron（International Law Review），Vol. 21(2005)，pp. 46-48.
Judgment of 24 July 1990, Supreme Court, 89 Hu 1479; Judgment of 21 March 2001，Constitutional Court, 99 Heon-Ma 139, Panryejip(Constitutional Court Case Report) Vol. 13 No. I（2001），p. 679. See generally Lim, Ji-Bong (footnote 57)，pp. 115-17.
See in detail, Cho, Byung-Sun, “Urinara eseoui Guklehyeongbeop ui Jeonmang gwa Gwaje（Perspectives and Tasks of International CriminalLaw in South Korea）”，Hyeongsabeop Yeongu (Journal of Korean Criminal Law Association) Vol. 27 No. 4(2007)，pp. 274-91.
Decision of 14 February 1992, Seoul High Court, 89 Ku 16296; Decision of 22 July 1991，Constitutional Court, 89 Heon-Ga 106; Decisionof 16 July 1998，97 Heon-Ba 23. See also Chung, Kyeong-Su, “Kukjeingweonbopui Kuknaejokyonge Kwanhan Pipanjeok Punseok (A Critical Re-view over the Domestic Application of International Human Rights Law)”，Minju Pophak（Democratic Legal Science），Vol. 17(2000)，p. 168; Cho,Byung - Sun （footnote 61），pp. 274-91.
See footnote 5.
See above chapter IV, two bills on the abolition of the death penalty in the National Assembly in 2008 and 2009.
