합리적 양형기준을 위한 공통된 양형인자 도출의 필요성 - 제 2기 양형위원회 양형기준 대상범죄 양형인자 도출의 통일성 위한 비교법적 고찰을 중심으로 -

Abstract

In order to reflect the general public's sound common sense in setting sentencing and to realize fair and objective sentencing that the people could trust, the Supreme Court provided groundwork regulations for the Sentencing Committee in the 2007 Supreme Court Organizational Act. The first committee held in May 7, 2009 proclaimed sentencing guidelines for eight major crimes - murder, bribery, sex crimes, robbery, embezzlement, malpractice, perjury, and false incrimination. These guidelines will be applied to criminal cases beginning in July of 2009. Establishment of such sentencing guidelines not only relieves inequities in sentencing terms but also allows for the people to observe the process of establishing sentencing terms, thereby promoting the realization of justice in criminal law. The existing Sentencing Committee's sentencing guidelines prescribe sentencing factors on each crime. When examining sentencing factor on each crime, these factors draw conclusions on the crimes in some cases but in some cases, they are not, although according to the regulatory perspective, they are the common sentencing factors. Therefore, there would be some problems under the current sentencing guidelines since both of the procedure of sentencing and the evaluation of sentencing may differ in each case. This can cause the problems of transparency and equality in sentencing. In order to solve this problem, this article intends to scrutinize sentencing factors from the judicial decision-making perspectives and to establish groundwork for the common sentencing factors. In addition, this article will research on the United States Sentencing Commission Guidelines Manual, Chapter 3 (Adjustments) Part A, B, C, D, and E, which is about the common sentencing factor, applicable to almost all crimes, such as the adjustments on victims, crime roles, obstructions to justice, conflicts in laws, and liability recognition. It will also study on the sentencing factors in the UK Criminal Justice Act 2003 Part 12 - Sentencing Section 142~146, Section 166, which is the model for the Korean provision (this UK law includes aggravate or mitigating sentencing factor), and on the Overarching Principles; Seriousness which was announced in December 2004, thereby introducing a common sentencing factor for the Korean jurisdiction. Through introducing this common sentencing factor from the research, this article aims at producing the common sentencing factor among the existing sentencing factors in the Korean sentencing guidelines. This will eventually help the second Sentencing Committee to examine abduction, larceny, fraud, forgery, obstruction of justice, and narcotic crimes, thereby making sentencing factors that do not conflict each other in crimes respectively. This will further create the public's trust and will also enhance equality and appropriateness of sentencing in each crime under the sentencing guidelines.