[Takryucheongron - Death Penalty] Elimination of Heinous Criminals and Prevention of Retaliation... Inevitably Must Be Maintained

Professor Kim Sang-gyeom, College of Law, Dongguk University

Every time heinous and inhumane crimes such as serial murders or child homicides occur, the death penalty is brought up as a form of punishment. This is because the death penalty is considered an extreme punishment from the perspective of retribution. However, South Korea has not carried out any executions since 1998. Although the national laws, including the Constitution, stipulate the death penalty as a form of punishment and occasionally sentence serial killers or brutal criminals to death, the sentences are not executed. The controversy surrounding the death penalty arises because, although it is sentenced, it is not enforced, raising questions about its effectiveness. On the other hand, some argue for the abolition of the death penalty because it infringes on the right to life.

In South Korea, there have been social discussions regarding the abolition of the death penalty, and the Constitutional Court has made rulings on the matter twice. In the first ruling in 1995 concerning the death penalty, the Constitutional Court stated that it could not be considered unconstitutional as long as it was applied only in exceptional cases where the necessity was fulfilled to protect public interest or other lives. In the second ruling in 2010, the Court held that even if the deprivation of the right to life occurs in exceptional cases where the limitation of the right to life is justified under a constitutional order that does not recognize absolute fundamental rights, it cannot be deemed unconstitutional.

In the unconstitutional lawsuits regarding the death penalty, the Constitutional Court ruled constitutionally valid with a 7 to 2 vote in the first case and a 5 to 4 vote in the second. These decisions show that the constitutional support for the death penalty has gradually decreased over time. Considering this trend, it can be anticipated that the time when the Constitutional Court declares the death penalty unconstitutional is approaching. However, as mentioned in the second ruling, Article 110, Paragraph 4 of the Constitution stipulates that even under martial law, if the death penalty is sentenced, it cannot be finalized in a single trial, thereby recognizing the death penalty as a form of punishment.

Proponents of abolishing the death penalty argue that the mention of the death penalty in the Constitution is based on the special circumstance of martial law and should not be interpreted to extend to normal times. However, this argument overlooks the principle of unity and harmony of the Constitution. The Constitution applies the principle of equivalence, meaning each article has the same effect. It states that even under martial law, if the death penalty is sentenced, it should not be finalized in a single trial, and in normal times, the death penalty sentence should be carefully judged through a three-tier trial system.

Abolishing the death penalty through legislation without amending the Constitution implies that the content of the Constitution can be changed arbitrarily by law, which is a dangerous act that undermines the supreme normativity of the Constitution. The death penalty has contributed to establishing legal order by removing heinous criminals who brutally took others' lives, suppressing heinous crimes, preventing private revenge, and realizing justice in human society. Of course, the human rights and lives of criminals are important, but unconditionally protecting the lives of those who mercilessly harmed others' lives results in denying human dignity and value.

Abolishing the death penalty cannot be seen as respecting life; rather, it may encourage a trend of disregarding life. The death penalty symbolically represents that heinous crimes such as murder are enemies of humanity. In a reality where serial murders and child sexual homicide crimes still frequently occur, the death penalty can be seen as a necessary punishment to protect the lives of the people and defend society. The death penalty should be maintained only in unavoidable and exceptional cases for the constitutional value order of human dignity and respect for the lives of the people.

Kim Sang-gyeom, Professor, College of Law, Dongguk University