이중평가금지의 원칙으로 살펴본 절도범죄 양형기준 속의 형의 감경과 가중

Abstract

The purpose of this study is to examine the aggravation and mitigation of the punishment in the sentencing guidelines for theft. Two main approaches of normative review and empirical research were selected for this paper. First, the current sentencing factors for theft was reviewed in terms of a principle of double evaluation prohibition. Second, it sentencing factors which aggravated or mitigated the length of the sentence were summarized from previous researches. Additionally, four additional logistic regressions were ran to examine the significant factors on the in-out decision especially for the suspended sentence. The used data were all convicted guilty in the first court collected from Korean Prosecutorial Guidelines System(PGS). A total of 4675 theft cases were finally analyzed for in-out decision. The result confirmed that the violation of a principle of double evaluation prohibition were commonly involved in the all process of sentencing. Many factors of the suspended sentence were overlapped with the sentencing guidelines. Also, the discretional mitigating factors which is considered in the early process before calculating the length of the sentence were repeatedly evaluated in the later process for in-out decision. In general, the decision of the suspended sentence is followed by calculation based on the difference of the number of the guidelines. However, certain factors, especially for criminal history, age, social attachment, had a possibility to be counted repeatedly within the guidelines Moreover, these factors were confirmed that it worked as main significant factors to change the in-out decision or the length. The detailed findings and implications will be discussed in the body of the article.