집행유예는 피고인에 대하여 형을 선고함에 있어 일정 기간 동안 그 집행을 유예하는 제도로서 현대 형법에서 가장 중요한 형사정책적 개선의 결과라고 할 수 있다. 집행유예규정에 대한 세 번의 개정에도 불구하고 현행 형법상 집행유예제도는 그 목적과 취지에 비추어, 여전히 문제점을 갖고 있다. 본고는 이러한 문제점을 검토하고, 외국의 입법례를 참고하여 집행유예의 목적에 부합하면서 집행유예의 활성화를 위한 개선방안을 제시한다. 집행유예의 요건과 관련하여 결격사유의 존부와 범위가 문제된다. 전과가 있다고 하여 언제나 형을 집행해야 하는 것은 아니므로 집행유예의 결격사유를 삭제하고, 이에 따라 결격사유의 사후 발각으로 인한 취소규정 역시 삭제하여야 한다. 또한 집행유예기간 중 집행유예의 허용 여부에 대해서 해석상 논란이 있지만, 형사정책적 관점을 최대한 살려 이를 허용하는 규정을 신설할 필요가 있다. 현행법은 집행유예에 관하여 일률적인 실효사유를 두고 있는바, 적어도 선고유예가 가능한 경미한 범죄를 저지른 범죄인에게는 집행유예의 길을 열어주는 것이 바람직하므로, 1년 이하의 징역이나 금고의 실형을 선고받아 확정된 경우는 실효사유에서 제외하는 것이 합리적이다. 나아가 주요 국가들이 일부집행유예제도를 두고 있으며, 응보와 범죄의 예방이라는 형벌목적과 함께 범죄인의 재사회화를 위한 효과적인 제도라는 점을 고려하여 형법에 일부집행유예제도의 도입을 제안한다.

A probation system of death penalty can lie halfway between death penalty and life sentence. Since grotesque and crude murder cases continually happen in Korea, it is difficult to abolish death penalty right now. We need to introduce the probation system of death penalty, which may be regarded as an interim stage for abolishment of death penalty. I have investigated the current death penalty system in China and found the following problems: There are many kinds of crimes punishable by death penalty, the appropriate condition is not shown to apply the probation system of death penalty, and the number of execution is the largest in the world. However, the probation system of death penalty has the following advantages: It is a humanistic system to head for the return to society, a positive effect of correction can be anticipated during the probation, and danger of misjudgement can be minimized. Moreover, in regard to the probation system of death penalty, I have explored a range of probation judgement, the probation period, the screening procedures of application, and the cases of remission.

The original ruling took into consideration the fact that the accused was a Chaebol owner and applied the concurrent offence punishment provisions and the discretionary sentence reduction system to lower the inferior limit of the penalty, and passed a suspended sentence. In order to divert public criticism, the original ruling also ordered a huge payment as a social contribution fund as a means of a community service order according to article 62-2 of the penal code. But the Supreme Court construed the concept of a community service order in a restrictive manner as ‘work or manual labor that can be imposed by the hour up to 500 hours.' As a result of this construction the Supreme Court reversed and remanded the original judgment that ordered the payment of a social contribution fund as a community service order. The original court maintained the suspended sentence by imposing a 300 hour community service instead of the original social contribution fund payment. Consequently the fairness of the examination of the offence was greatly impaired by lowering the inferior limit of the penalty to 3 years in a case in which the accused was proven guilty of 11 separate offences including one of which the penalty is stipulated as ‘life sentence or imprisonment for more than 5 years.' This ruling disclosed the problematic issues of the concurrent offence punishment provisions and the discretionary sentence reduction system that grant judges excessive discretion on weighing penalties. It is also legislatively meaningful that the case raised issues on introducing new forms of ‘suspended sentence conditional orders' such as fund payment orders or damage recovery orders.

It is not related to construction of Article 62② whether “suspension of execution of a part of a imprisonment” is admitted or not, because a concept of ‘a part’ in Article 62② and a concept of ‘a part’ in suspension of execution of a part of a imprisonment are different. The question of “suspension of execution of a part of a imprisonment” is related to construction of Article 62①. While article 62① provide requisites for suspension of execution of sentence, Article 62② provide only suspension of execution of a part of sentence in case of concurrent imposing of punishment by article 62①. Therefore, it is difficult to comprehend that article 62② provide another requisites for suspension of execution of sentence as article 62①. And it is unreasonable to interpret “… the execution of the sentence may be suspended” as “… the execution of the whole of a sentence may be suspended” in article 62①. Because a concept of ‘a part’ in suspension of execution of a part of a sentence and a concept of ‘a part’ in Article 62② are different essentially, and because a concept of ‘the whole’ in suspension of execution of a part of a sentence and a concept of ‘the whole’ in Article 62② are different essentially. And ‘a sentence’ has two meaning: a sentence against a crime and a sentence against several crimes. Therefore, it is unreasonable to interpret that ‘a sentence’ in article 62② and in suspension of execution of a part of a sentence have same meaning. It is proper that suspension of execution of a part of a imprisonment is solved by not interpretation but legislation, because it is of great no advantage to the accused.