바람직한 양형조사의 주체에 관한 논의사항

Abstract

Although, through partial reform of the Court Organization Act, the Sentencing Commission of Korea and Sentencing standards have been established, the revision of the Criminal Procedure Law and the revision of the Probation Act etc., which regulates the principle parties, methods and procedures of sentence investigation, have failed to receive reform despite the need and has been abolished after the termination of office of the 17th Members of Parliament. The Supreme Court's decision, on 20th July 2009, to place twenty one sentence investigators at the seven regional courts nationwide has been met with opposition from the Ministry of Justice, Korean Bar Association and the Lawyers for a Democratic Society. The disallowance of consultation of the accused with the sentence investigator is also adding to the dispute. Following the current situation, this study aims to examine the revision of the criminal procedure law regarding the introduction of sentence investigator and its current state of discussions, legislations in other countries and finally aim to lead active discussion for the development of appropriate offence examination assessment. A number of conclusions can be made when observing legislation of various countries. Firstly, in most of the countries, sentence investigations were carried out by probation officers from the Department of Justice. Secondly, the monopolizing of sentence investigation by the court via sentence investigators have been found to have lack of legal evidence, limits in practical application and other issues. Thirdly, although all methods of sentence investigation would have its advantages and disadvantages, the current enforcements by the court for sentence investigators to carry out sentence investigations risks violating the court's neutrality, disclosure of privacy of the accused when his/her guilt or innocence has not been established, violating personal rights and pre-exposure of the judge's mind which goes against the presumption of innocence. Since 1995, presentence investigations by probation officers prior to adjudication, through experience and professionalism, has led to successful establishment of sentence investigation on adult criminals. In addition, the utilization of probation officers during sentence investigation would lead to substantial decreases in the use of the national budget and prevent unnecessary expenditure of judicial cost. Therefore, in conclusion, sentence investigations carried out by the probation officers is the most appropriate and least straining method of assessment at this point in time.