경합범의 성립과 처벌

Abstract

This article analyses the structure of sentencing with regard to multiple offences in Korea. The problem is in short how to set a concrete sentence to be served when a defendant is convicted of multiple offences at the same trial, or is convicted while subject to a sentence for a prior offence. The legislature initially sets a statutory maximum and minimum sentence for each offence or class of offences and the judge cannot set an offender’s sentence lower or higher than the specified unless mitigating or aggravating factors justify a departure. The permissible range for departure and relevant aggravating and mitigating circumstances is also set by the legislature. In relation to multiple offences the legislature adopts enhancement of maximum by additional 1/2 excepting concurrent and consecutive sentences(Criminal Act §38 ①). Recently the legislature passed the law amending a clause of the Criminal Act(§37 ①) which defines multiple offences at the same trial. As a result of that amendment every offence which committed prior to an offence sentenced with imprisonment or more before the present trial may be included in multiple offences at the same trial. In other words the criminal career sentenced with fine or less cannot demand separate sentences any longer. And the supreme court began to apply the new clause in sentencing multiple offences. This article puts stress on that the judge has to keep the order of regarding relevant aggravating and mitigating factors in calculating the range of final sentence as prescribed by the Criminal Act §56. Especially relating to sentencing multiple offences the enhancement of maximum by additional 1/2 should be regarded after applying all aggravating and mitigating factors which precede in sentencing order.