형법 제53조의 개정방안

Abstract

According to the present law, crime extenuation enables for judges to extenuate up to the half of statutory punishment - from the minimum several months to the maximum five years - based on their random decision even when there is no specific reason of extenuation. Thus, crime extenuation may cause sentencing to be recognized to be a merciful measure by a judge, induce imbalance in sentencing, and serve as one of the causes of privileges of former post or paternal judgement, leading to argument that the existing crime extenuation should be abolished. However, because statutory punishment established by lawmakers is based on typical cases of the relevant crime types, there should be possibilities that a punishment out of the lower limit of statutory punishment can be sentenced in an individual case. Also, as for crimes whose statutory punishment is extremely strict by special laws, crime extenuation should be maintained in order to sentence punishment responding to illegality and accountability of the accused. However, although the existing crime extenuation is a system that rules considerable duration of punishment for the accused, it is undesirable that the system is based on random judgement by judges. Although discretion of judged can be allowed in order to secure appropriateness of sentencing in a specific case, the discretion should be within the limit of laws as a part of the application of a law. The purpose of this study is to analyze cases of application of crime extenuation to identify problems, and to review foreign cases of legislation having similar system with crime extenuation and improvements in the system. The measures of improvement by the author are as follows. First, crime extenuation shall be titled to be "extenuation by circumstances." Second, there shall be four reasons of extenuation by circumstances. Third, extenuation by circumstances shall be a fourth of statutory punishment and only one repetition of extenuation shall be allowed. Finally, reasons of extenuation by circumstances shall be stated in the ruling so that right to appeal of a party shall be secured and ex post control shall be possible.