살인범죄 양형기준 고찰 - ‘범죄유형화’와 ‘특별양형인자’를 중심으로-

Abstract

In the application of sentencing guidelines, decisions of 'offence types' and 'sentencing range' are the most important stages, in which the concrete scope of sentencing range is recommended. This article explores the general principle of 'classification of offences' and avoiding double counting of special sentencing factors in this two stages. Reviewing the application of crimes of Homicide Sentencing Guidelines, the main assertions of this study are as below. First, considering the fact that 'classification of offences' in sentencing guidelines reflects the degree of 'seriousness of crime', subjective motive criteria might be transformed into the standard of crime seriousness. Subjective factor such as five murder motives could be arranged into the degree of seriousness. The study reviews the validity of offence classification according to five subjective motives, and possibility of assessment of subjective motive factors in the stage of deciding sentencing ranges. Second, once the offence type decided in the first stage, concrete recommended sentencing range might be determined after considering special sentencing determinant factors. In this stage, the article asserts the need of qualitative evaluation of some special sentencing factors such as 'murder with premeditated' aggravating factor and '(strong) provocation of the victim' mitigating factor. If those special factors in special sentencing determinant are to be balanced equally with other special sentencing factors, characteristic(nature) of murder may not be accurately reflected in sentencing. Thus, qualitative values should be added into those two special sentencing factors. And last, considering the fact that the most of the murder cases applicable 'Crimes of homicide sentencing guideline' has been classified into the second type of murder offences, current method of offence classification in sentencing guideline needs to be reconsidered. Current classification of murder offences should be reclassified by adequate objective criteria or the second type of murder offences should be subdivided for differentiating various common murder offences. If the classification of offences in individual sentencing guideline reflects the degree of 'seriousness of crimes', classification of offence is the most important stage in deciding sentencing range. There are no common principle for classification of the offences in individual sentencing guideline. The article maintains as a conclusion that common format and principle of classification of offences in establishing sentencing guidelines be needed not only for the consistency of structures of sentencing guidelines but also avoiding double assessment of 'seriousness of crimes' in the process of considering sentencing factors for recommended sentencing ranges.