죄형균형의 판단방법

Abstract

The constitutional law demanding respect for human dignity and values requires realization of substantial justice pursuant to the contents of penal laws. Accordingly, contents of penal laws shall maintain proper balance between crime and punishment, and brutal punishment must be prohibited. Punishment lacking in balance with crimes is in breach of the Constitution and is also against the principle of legality which is the great principle of modern criminal laws. The basis on the Constitution for the balance between crime and punishment is related to the Article 10 of the Constitution. In other words, human dignity and values must be respected and protected from the threats of punishment when delimitating type and scope of statutory punishment against specific crimes. And in accordance with the principle of equality in the Article 11 of the Constitution, statutory punishment against a crime shall not go against the principle of equality and must not excessively harsh as compared with the nature of crime and responsibility of offenders in the relationship with other offenders. Pursuant to the principle of proportion or principle of excess prohibition stipulated in the Clause 2, Article 37 of the Constitution, appropriate proportionality must be maintained to make punishment be appropriate for illegality and responsibility. The criminal law of Korea defines components of addition･reduction according to the addition･reduction of illegality or responsibility based on the basic components. And special criminal law also has regulations on additional punishment in particular cases. Therefore, in regards to the balance between crime and punishment for reduction or addition components, there is no way but to evaluate from the basic components to judge whether or not punishment is defined corresponding to illegality and responsibility. The prerequisite for evaluating the principle of balance between crime and punishment is the principle of propriety which is one of the contents of the principle of legality. Contents of the principle regulate elements of a crime and the principle of punishment to be appropriate. In addition to the foregoing, responsibility and purpose of punishment become important specific standards to judge the principle of the balance between crime and punishment.