실무운영을 통해서 본 작량감경 규정에 대한 비판적 고찰과 개선방안

Abstract

Discretionary mitigation, also known as 'mitigation of punishment in extenuation of circumstances', remains unchanged since the Korean criminal law was first created in 1953. Among the advanced countries only South Korea and Japan have a discretionary mitigation statute. However it is not clearly determined when and how it should be applied. Therefore the application of discretionary mitigation is completely up to judges' disposal. In result, punishments become more random and unpredictable. Interpretation of the law is not a solution; legislative approach should be made. There are numerous ideas and proposals to do this, however, here we will try to rule out the existing discretionary mitigation statute, create a new statutory mitigation rule, and categorize the cases into two: when there is a serious unbalance between defendant's action and expected punishment, and when it is highly necessary to mitigate considering defendant's rehabilitation possibility and social life afterwards. With this approach, it also becomes possible to recognize this as a reason of appeal since application and reasons of statutory mitigation should be clearly stated in court opinion. Currently the criminal law is undergoing a major revision after 50 years have passed since its creation. With this major revision, some 'bold' changes to the discretionary mitigation statute will be needed as well.