결과적 가중범의 불법비례적인 양형기준 정립

Abstract

The statutory sentence proportional to illegality and the sentencing proportional to the statutory sentence are the basic principles of criminal legislation from the principle of proportionality and accountability, which are the grand principles of the constitution. In addition, the criminal law has provisions for the consequently aggravated crime for the purpose of punishing crimes proportional to illegality. However, even if there is a risk of harming life or body in the act, there is no consequently aggravated crime for all such crimes. In addition, the regulations that punish attempted criminals are not unified with each other, which may be a problem in interpretation. Moreover it is also a question of whether the resulting legal sentence of the consequently aggravated crime harmonizes with the responsibility of the criminal law. If so, it is necessary to review whether these problems can be solved through sentencing guidelines. Current sentencing guidelines may or may not reflect the consequently aggravated crime regulations. In other words, sentencing guidelines are made in the form of independent type classification, inclusion in the basic type, classification as sub-type within the same large type, reflection in the form of sentencing factors, and not included. In other words, the sentencing standards do not have a unified method for the consequently aggravated crime. In this paper, it was examined whether it can be created as a aggravating factor among special sentencing determinant so that those who have intentional consequences from the consequently aggravated crime can be distinguished from the negligent crime and moved to the aggravated setencing range rather than the standard sentencing range. And we looked for a way to reflect the difference in illegality when the basic act of the consequently aggravated crime was a rider or an attempt as a sentencing factor. However, even though there is no provision for the consequently aggravated crime in the criminal law, there is still controversy over whether it is possible to create a new provision for the consequently aggravated crime by adding the occurrence of serious injury or injury to sentencing factors. Normally, even if it has the same structure of the consequently aggravated crime, it is very difficult to present a method of setting sentencing guidelines that penetrate all the consequently aggravated crime due to the characteristics of individual criminal groups and sentencing ranges based on empirical statistics. Nevertheless, as part of efforts to secure the trust and predictability in the judiciary and to secure fairness in criminal trials as a whole, the sentencing guidelines of the consequently aggravated crime should be established in proportion to the illegality.