양형조사와 양형심리

Abstract

In criminal procedure, sentencing requires evenness where the same degree of penalty is enforced to those of the same type of criminal cases. This is a very important subject in terms of society as it works to secure general public's trust towards the law and order allowing the preventive function of the penalty to properly work. In order for the sentencing to be suitably given, the factors that are considered during the imposition of a sentence should be thoroughly examined. Such factors include: offender's crime motive, methods, relationship with the victim, personality, daily behavior, growth environment, education, and etc. Currently, aforementioned sentencing factors are examined by the presentence investigators under the court and the investigation prior to ruling system stated in the Act on Probation is also used as a means of presentence investigation. Such a court-led authoritative presentence investigation does not have an appropriate legal basis within the adversary system of criminal procedure structure. Moreover, if the presentence investigation system based on the adversary system is not legislated, the ideology of criminal procedure, which is to establish the procedure related facts through fair process and trial, cannot properly operate in the domain of examining the sentence factors. Legislation of the presentence investigation system that is based on the adversary system seems to be the only probable solution to this problem. Also, considering that the court does not have enough personnel to investigate the fact relevance whereas the prosecution possesses such personnel and can utilize police investigative force to investigate the sentence factors, it is a much more valid and practical solution. Consequently, the prosecution and the defendant or the attorney can present the sentencing factors related evidences and the counter data, respectively, to engage in a legal argument whereas the court will make an objective judgement regarding the dispute allowing the truth to be approached by a more fair process. On the other hand, current criminal procedure is designed to conduct the sentencing hearing at the time of a trial. The sentencing hearing is supposed to be conducted on the basis the defendant being found guilty. However, current procedure takes the defendant who is not yet found guilty and force him to go through the hearing. This is a violation of presumption of innocence principle and poses a problem. To resolve such problem, the sentencing hearing should be separated from the trial as it is in the other countries who adapted the British/American legal system. By separating the trial into 2 steps, problems the current combined-hearing system has such as ① possibility of the judge's unfair prejudgement, ② difficulty in guaranteeing the defendant and attorney's right to defence, ③ difficulty in maximizing the penalty's preventive function, ④ difficulty in rationalizing and specializing the sentencing, ⑤ hindering the judicial economy, ⑥ defendant's privacy infringement, and etc. can be adequately resolved.