“뉘우침”에 관한 양형 법도그마틱 ―반성이란 무엇인가―

Abstract

In the sentencing reason that “the defendant is not truly remorseful,” is the defendant's “sincere remorse” merely a moral call, or should it be a legal judgment subject to a rigorous process of legal subsumption? This article takes the position that sentencing judgments and sentencing arguments are legal arguments, and that there is a legal normativity to the sentencing process, but it also seeks to expose the intractability of sentencing jurisprudence as conventionally constructed from a retributive perspective, and to reframe it from the perspective of retribution without retribution. To this end, we first note that there is no jurisprudence on what legal facts must be present in order for the sentence mitigation requirements of ‘remorse’ and ‘remorsefulness’ to be met in the current criminal law and sentencing guidelines. By pointing out that remorse (or contrition) is currently interpreted as an emotional rather than a behavioral element, and by critiquing the practice of requiring the intentional expression of such emotions in court, this article attempts to establish a new dogma on the concept of remorse as a communicative act. In the not-too-distant future, when retributive justice is no longer justified, when punishment by the state is no longer justified, and when the criminal law disappears, remorse will be able to return to its original place in the life world and the moral interior. However, in the current criminal law system, which is dominated by retributive justice and does not fully recognize the victim’s agency, it is necessary to establish a juridical dogmatics of remorse. Remorse is not a verbal or emotional expression directed at the state power, nor is it a demonstration of a reflective personality, but rather a communication and behavioral adjustment between the community, the victim, and the defendant that identifies and repairs the damage, identifies his or her fault, and identifies the correctional, rehabilitation, and welfare policies provided by the state at the same time, such as the new concept of take-charge responsibility. If we define the concept of remorse as a rational communicative act, so-called “sincere remorse” should be eliminated as an independent sentencing factor and criterion and relocated as a premise or subsumption of taking charge to be educated to develop the capacity to escape ignorance and know the specifics of legal obligations, or taking charge to be treated to develop the capacity for self-control to comply with the law. A genuinely remorseful human being strives to earn the forgiveness of his or her victim or to avoid reoffending, and vice versa.