양형이탈 유발요인 탐색 : 살인사건을 중심으로

Abstract

The present study aimed to investigate factors that cause sentencing departure in murder cases. Using a sentencing database, frequency analysis and polynomial logistic regression analysis were performed to explore factors that cause upward and downward departure. Of the total 747 murders cases, there were 100 cases of sentencing departure. Among them, compared to upward departure, downward departure (59 cases) was more frequently founded. In the second trial (vs. the first trial, about 2.5 times) and when the defendant had a criminal history (about 2.13 times), the possibility of upward departure increased. When the defendant was a woman (about 3.24 times) or had an intellectual disability (about 3.24 times), possibility of downward departure increased. When sentencing factor ‘the victim opposes punishment’ was recognized, or the defendant was considered as not having ability or intention to commit a murder, the possibility of upward departure significantly decreased. On the other hand, when the defendant was considered as having intention for a murder, or the more evidence presented in the trial, the possibility of downward departure decreased. In addition, we reviewed sentencing cases in the current database to analyze what factors caused changes in the sentencing guideline compliance status for the second trial. Finally, we analyzed three aggravating factors of interest and presented improvement opinions on the current sentencing guideline. Although the current study had a limitation in that it did not include all subtypes of murder, it first explored the factors that cause sentencing departure in murder cases through quantitative analysis.