양형위원회의 양형기준안에 대한 비판적 고찰

Abstract

Recently with the highlight on the importance of sentencing phase in the criminal trial, many imbalance and inappropriate sentences were raised and attracted social attention. An unfair sentencing deviation and a paternalistic judicial decision as a part of the judicial reform raised a discussion about the sentencing guidelines. Recently there has been a big change in making a sentencing guideline organized by the Sentencing Committee. By the reform of the Supreme Courts of Judicature Acts, the Sentencing Committee was founded in May 2007. The Sentencing Committee, based on experiential approach method to the actual sentencing verdict, added a normative adjustment to sentencing verdict to 8 crimes which are homicide· sex·bribe·robbery·usurpation·malpractice·perjury·false accusation and a sentencing guideline of those crimes was made in priority and a public hearing was executed. The sentencing guideline of the Sentencing Committee takes example of the British model and by complementing its defect, they establish an independent sentencing guidelines for individual crime types. They draw out the sentencing argument for each crime types and according to the argument, they make a decision on the sentence range and this has an advisory effect. But looking back at the point where the sentencing guidelines of the Sentencing Committee are going to be presented, it’s a shame that the foundation of Sentencing Committee and basis set of the sentencing guidelines are not being approved by the sentencing guidelines standards but by the Supreme Courts of Judicature Acts, that it’s insufficient to solve the sentencing guidelines gap due to the big sentence range problems of the sentencing guidelines and that there’s no mandatory effect in the sentencing guidelines. Even though the sentencing guidelines are insufficient, the Sentencing Committee’s activity making research and effort during these two short years in order to solve the examination of an offence in South Korea is unbelievable. Not many privileges were granted to the Sentencing Committee and regardless the difficulty to reflect in the sentencing guidelines due to the problems in the criminal justice policy itself, it’s a great thing that the Sentencing Committee still prepared appropriate sentencing guidelines for South Korea and made a sentencing reform. I hope that with the sentencing guidelines of the eight types of crimes will be the start to obtain an appropriate and equal examination of an offence and correct the basis of criminal justice. For this, the regulations of the Sentencing Committee related with the basis establishment of the Sentencing Committee and the sentencing guidelines should be established as a law and more rights should be granted to the Sentencing Committee and when setting up the sentencing guidelines, the limited normative problems should be solved through the improvement of the criminal justice regulations so that the sentencing guidelines can have the legitimacy. The Sentencing Committee should also arrange the sentencing guidelines of other crimes than these 8 types of crimes. And they should keep paying attention whether the judicial decision has been correctly made after the sentencing guidelines came into effect, by looking through the sentencing guidelines data analysis and in case of problems, they should have a system to complement it.