집행유예 취소와 적법절차

Abstract

Under the revision of the Penal Code in 1995, it became possible to attach probation as a condition to the suspension of execution of sentence. Before the revision, a suspension could be revoked only at the time of sentencing if it was discovered that due to legal restraints, the suspension would otherwise have been disqualified. If a person who was sentenced the suspension of execution of sentence with the condition of probation (hereinafter referred to as ‘the sentenced person’) is found to have seriously breeched the probation obligation, revocation procedure can be initiated. After reviewing whether or not the breech had actually occurred and assessing the gravity of the breech, the courts will render a decision as to revocation of the suspension. If the suspension is revoked, the sentenced person will be imprisoned for the original sentence.
 Because the revocation deprives the sentenced person of liberty, special care must be taken to adhere to the due process of law principle during the revocation procedure. Although securing the level of due process protection in revocation procedure would be difficult to attain to the level for the accused in criminal procedure, reasonable protections must be provided unless they conflict with the status of the sentenced person.
 The sentenced person must be given the opportunity to present evidence in his or her favor and to speak against any adverse evidence in open hearing. In special situations such as the sentenced person is in custody or is indigent, legal assistance must be provided according to the due process of law principle. These would provide the minimum level of protection. Especially in the revocation procedure of probation attached cases there must exist a more prudent and effectual hearing process in ascertaining the existence and gravity of the breaches. The Korean Criminal Procedure Act only requires that the court hear the sentenced person’s opinion regarding revocation with or without an open hearing thereby failing to offer minimum procedural protection.
 Strict evidence rules of typical criminal trials are not directly applied to the revocation hearing due to the basic differences of both procedures but could be used within a reasonable scope. In addition, through developing fair and objective revocation guidelines, unwarranted disparities in revocation decisions can be avoided or at the very least minimized.