성범죄 양형기준상 처벌불원의 정당성 ― 비교법적 고찰에서 출발한 시론적 논의를 중심으로 ―

Abstract

The practice of reflecting the victim's unwillingness to punish the accused which is obtained by the accused through an agreement with the victim mainly through money in the sentencing is deeply embedded in the sentencing guideline and practices of Korean criminal courts. On the other hand, in most developed countries such as the United States, France, the United Kingdom, Germany and Japan, victims' opinions on the level of punishment of the accused are rarely considered in the sentencing of the accused. It is contrary to the notion of justice that the unwillingness of the victim to punish the accused is decisively reflected as an advantageous factor in the criminal punishment of the accused. From the point of view of general and special prevention, it is also a large side effect that sentencing criteria are formed according to the arbitrary criteria that are based on the victim's unwillingness to punish the accused. It is reasonable that the sentencing standard is formulated in consideration of the degree of criminal punishment determined by the legislator, the degree of actual illegality, and the empirical crime prevention effect of the punishment. It is unfair for the victim to be compelled to accept a probation for the accused or a reduction in the sentence of the accused in order for the victim to receive compensation for the crime from the accused. It is necessary to remove the victim's unwillingness to punish the accused from the special mitigating factor of the sentencing guideline and expand the public system for recovering the victims' damage. The victim's claims for damages and applications for compensation orders should be more activated. If the victim feels the risk of retaliation, an anonymous claim for damages or an anonymous application for compensation order must be guaranteed. It is necessary to strengthen the legal support for victims in litigation procedures, compensation order procedures, and enforcement procedures by providing attorneys for victims. In addition, for victims who have not received compensation from the accused, it is needed to establish a system in which the state actively compensates for the damage caused by the crime first, and then collects the expenses for the compensation from the accused.