주취감경(酒醉減輕)의 형법적 문제와 양형기준 합리화

Abstract

This essay aims to review the issue of alcohol intoxication and crimes in the area of criminal responsibility and sentencing. So called ‘common sense of the people’ demands re-evaluation of intoxication as mitigating factor in sentencing. The issue of criminals under alcoholism, as not only legal issues but also socio-economic issues, needs more evidence-based criminal justice policies and more rational sentencing policies. Sentencing guidelines of 2018 recognize intoxication with his/her own responsibility as general-offender-mitigating factor, and intoxication without his/her own responsibility as special-offender-mitigating factor. Sentencing guideline on sex crimes provides its own special guidance on sex crimes under the influence of voluntary alcohol intoxication : intentional intoxication to commit sex crime will be evaluated as aggravating factor, and some habitual intoxication may not be evaluated as mitigating factors. The author proposes that such negative sentencing factor can be a way of implementing special policy concerns against problems of alcohol and violent crimes. Medicalization of ordinary emotional status, such as depression or post-traumatic embitterment disorder also can be negative sentencing factor which should not be evaluated as mitigating factor. Further to the introduction of negative sentencing factors into the current framework of sentencing guidelines, ‘prolonged murderous attack of utmost ferocity’ as the results of violent crime under intoxication should be added as general-criminal act-aggravating factor. Such elaboration of sentencing guidelines and sentencing factors will promote public confidence in criminal courts.