합리적인 양형을 위한 양형 조사 방안 - 양형 조사 주체 및 소속기관을 중심으로 -

Abstract

Currently, in the Republic of Korea (hereinafter, Korea), there are a quite number of arguments about the agents who is in charge of implementing a sentencing scrutiny. This article, thus, aims to find the rational solution for deciding who would be the best agent for performing sentencing scrutiny. In order to produce a solution, the article will make the following methodology. First of all, this article will examine who should be the right person for sentencing scrutiny based on the normative perspectives. For this, it will analyze the existing agent-in-charge of sentencing scrutiny problem, thereby clarifying the adequacy of the arguments in defendants’ perspectives and providing the groundwork or guide for sentencing scrutiny agent. Secondly, this article will further discuss who should be the right agent, with regards to the real value that the result of sentencing scrutiny produces. In order to make the conclusion, it will deal with the comparative study of sentencing scrutiny system in other countries. This methodology is crucial because this comparative study will offer a better analysis for the criminal justice policy. It will therefore deliver a better guidance for deciding who should be the right agent for sentencing scrutiny although the normative feasibility is not ignored. Lastly, in realistic point of view, this article will examine who would be the right agent for sentencing scrutiny. For this analysis, it is necessary to study the existing sentencing factors that sentencing examiners of the courts inspect. According to the current criminal jurisprudential procedure, the conditional sentencing factor should be understood the sentencing factor that the investigation agents should scrutinize based on the principle of the burden of proof. In particular, the sentencing factor for social treatment (wide scope of sentencing factor) that is related to adults or adolescents should be scrutinized by the official of the probation of juvenile offenders under the Probation Law. Of course, the idea of criminal procedure is based on the finding of real substance of truth, and the Criminal Procedure Law includes the factor of direct authority principle for this problem. In this perspective, the courts may exceptionally investigate the factors of sentencing when the parties cannot make any conviction from their provision of proof. However, the direct investigation of the court should be the last supplementary option. In addition, in the case of investigating the relevant facts by this direct principle, its method should be to maximize the trial principle or direct principle basis. For example, when a defendant’s attorney argues that the victim settled the case with the plaintiff out of the court, and when the court does not know whether there was a real agreement between the parties, the court then needs to summon the victim as a witness based on the trial principle or direct principle, thereby hearing the opinion of the witness and holding judgments. However, it is not reasonable for the sentencing officials of the courts to investigate the case and report to the courts. When it is, in fact, difficult to provide sufficient evidence, and examining an exceptional sentencing fact by means of direct investigation, the method should the most unbiased one. Considering all of these factors, the article will scrutinize whether the sentencing factors that sentencing officials of the courts investigate are suitable for its supplement principle of direct investigation, whether direct investigation principle is harmonized with the trial and direct principle, or whether the direct principle based investigation is unbiased, thereby analyzing its rationality. This methodological finding is to seek the realistic alternative for the resulting validity with providing a methodological validity.