횡령ㆍ배임죄에 있어 형의 가중ㆍ감경 현황과 개선방안

Abstract

In the criminal law of Korea, there are numerous aggravation and mitigation provisions on judges’ practices of sentencing. These provisions has typed the statutory aggravation, statutory mitigation, and Discretionary Mitigation. The purpose of this article is to study on aggravation/mitigation of Punishment and investigate the empirical aspects and the effect of aggravation/mitigation of Punishment on sentence length in Embezzlement/Breach of Trust Crime. The data analysed in this study were obtained from sentencing in court of first instance in Korea, kept files in Prosecutorial Guideline System(PGS) of the Supreme Prosecutor’s Office. The data consists of a total of 5,411 cases of sentencing of rape crime sentenced between July 1, 2009 and December 31, 2013. We used cross-tabulation tables and regression analysis. The results indicate that 1) judges’application percentage of Aggravation for concurrent crimes was 0.8%, Aggravation for repeated crimes was 2.6%, Discretionary Mitigation was 76.0% in Embezzlement/Breach of Trust Crime, 2) Aggravation for concurrent crimes and Discretionary Mitigation have a significant effect on imprisonment sentencing length. 3) When other factors is controlled, aggravation for concurrent crimes was positively related to the sentence length, but discretionary Mitigation was negatively related to the sentence. And we wish this study to contribute to the understanding and improvement on aggravation/mitigation of Punishment on sentence in our society.