우리나라의 양형기준에 대한 비판적 분석

Abstract

The Korean Sentencing Commission has established sentencing guidelines firstly on 7 crimes including murder, robbery, sexual assault, bribery, perjury etc. in 2009. After great debate The Commission adopted a gradual approach like the United Kingdom's model, not following comprehensive guideline scheme like U.S.A. model. This paper aims to analyse the structure of Korean sentencing guideline system and point out its characteristics and problems. The characteristics of our sentencing guideline scheme are followings :1) sentencing guidelines are and will be established independently on each crime category, and each crime category is classified into several "types",2) the Commission did not accept the methodology of calculating major sentencing factors, but adopted such system that within each crime category sentencing factors are divided into two groups according their importance, the one is 'special sentencing factors', and the other is 'general sentencing factors',3) these two groups of sentencing factors are also divided into 'aggravating factors' and 'mitigating factors',4) each type has three sentencing ranges(mitigating range, basic range and aggravated range) and the appropriate range is selected according to comparing the number of special aggravating factors and special mitigating factors, for example, if special aggravating factors outnumber special mitigating factors, then 'aggravated range' will be selected,5) general sentencing factors are considered when the judge sentences specific term within the selected sentencing range. The Korean sentencing guidelines, briefly summarized above, will be expected to reform sentencing problems, such as disparities, leniency. However, this paper points out some problems and deficiencies of our sentencing guidelines both theoretically and practically. Firstly, there has been no serious review regarding the fundamental issue, that is, which purpose we pursue through sentencing guidelines among various purposes of punishment. Secondly, the Commission did noy accept so-called 'grid model' which is based upon the calculation of major sentencing factors according to their importance in each crime. As a result, every 'special sentencing factor' are regarded as equivalent. Thirdly, the criteria of suspension of imprisonment is very obscure and imprecise, so we have to recognize that the guidelines are not elaborate enough to control the discretion of judges.