작량감경에 대한 경험적 연구: 강간죄를 중심으로

Abstract

The purpose of this article is to investigate the effect of sentence factors on Discretionary Mitigation, and the effect of Discretionary Mitigation on sentence length in rape crime. Discretionary Mitigation of punishment in extenuation of circumstances is mitigation of punishment/sentence in trial process by judges. The Discretionary Mitigation was enacted in Korean Criminal Law since 1953, but the application of it was not concretely and clearly determined in legal code. The data analysed in this study were obtained from sentencing in court of first instance in Korea, kept files in Prosecutorial Guideline System(PGS) of the Supreme Prosecutor’s Office. The data consists of a total of 477 of sentencing of rape crime sentenced between June 1, 2012 and June 30, 2014. We used ANOVA, Regression Analysis and Logistic regression analysis etc. The results indicate that 1) judges’ application percentage of Discretionary Mitigation was 76.0% in rape crime, 2) injury level in case, victim’s requests for leniency have a significant effect on Discretionary Mitigation. 3) Discretionary Mitigation have a significant effect on imprisonment sentencing length, in-out decision(probation/incarceration) in rape crime. 4) When other factors is controlled, Discretionary Mitigation is related to the sentence. On the sentencing of the rape, length of the sentence of it's application cases is lower than non-application cases. Such results seem to suggest that Discretionary Mitigation are significant factors on sentence in rape crime, although offence factors are of primary importance. And we wish this study to contribute to the understanding and explanation of effect of Discretionary Mitigation on sentence in our society.