양형기준 준수의미의 재고찰에 기초한 양형기준제도의 발전적 운영방안

Abstract

The sentencing guideline system is intended to rationalize the sentencing of judges by presenting sentencing factors as well as a range of recommended sentences for the purpose of realizing a fair and objective sentence that reflects people's sound common sense and can be trusted by the public. Although the sentencing guideline system is only recommended, it is necessary to rethink what it means to adhere to the sentence guideline system, considering the introduction of the sentencing standards system. Unlike past sentencing practice, the prosecutor or defendant now has to argue and prove a favorable sentence in his or her position in the trial process. In the process, the assertion of the element of sentencing between the prosecutor and the defendant was divergent, and the cases in which the element of the sentence became contested also increased greatly. It is necessary to explore the development of the guideline system based on the reexamination of the implications of the guideline system in this changing sentence practice. It is a concept that includes compliance with the sentencing guideline system, including not only the formal adherence of the sentence within the scope of the recommendation sentence, but also the actual compliance with the judgment of all the procedures and contents such as the evaluation of the sentencing factors suggested by the sentencing guideline system. I have to understand. It is important to clearly state the reasons for the sentence in the sentence in order to judge whether the sentencing guideline are actually complied with. In the case of reaffirmation of compliance with the guideline as substantial compliance, it is also necessary to shift the perception of guideline deviations. For the developmental guideline to be developed, it is necessary to derive the individual sentence and proper sentence by departing from sentence guideline, if necessary, rather than judging formally and mechanically by sticking to sentencing guideline. In order to do so, clear guideline for departure from the guideline should be established. There were many problems with sentencing criteria such as overlapping sentence problems, imbalance of sentencing factors, dual evaluation of sentencing factors and probation reasons, and handling multiple crimes. Therefore, it is necessary to review the improvement plan based on the accumulated statistical data. In particular, in order to improve the sentencing hearing, it is necessary to positively review the process of trial procedure.