형사판례에 나타난 양형조건으로서초범의 정당성과 법적 근거

Abstract

In this paper are broadly treated upon the cognition of problem, whether thesentence of the criminal practice of criminal court is proper. Moreover finally it isfocused on whether the character of defendant without criminal record, that is, thefirst offense may materially be basis considering sentence. For this reason, here total circumstance of sentence was analysed. For example, Itried to find out the tendency of criminal decisions focused on what grounds ofsentence can be included the Article 51 of Korean Criminal Act or not, because thecharacter of defendants without criminal record is closely connected with totalphenomenon of sentencing, so that we can find out the right critical mind andmoreover the right solutions. So, first, the practice of sentence and interests of academic circle of criminal lawsentencing was analysed, then the process organizing the committee of sentencing andsentencing guideline by the committee of sentencing was reviewed. And it was totally reviewed how the character of defendants without criminalrecords was functioned and what is the legal basis that the character of defendantswithout criminal records is functioned as extenuating circumstance in the sentencingof offense, and at the same time it was reviewed how the character of defendantwithout criminal record was functioned in the criminal decisions of the koreancriminal court, for example, the character of defendant without criminal record havepositively been influenced to the defendants or not. Finally, it was reviewed, if the legal basis of the character of the first offense can be found or not, and if not, it was reviewed, how the character of defendantswithout criminal records can be justified. As the result, I am realized the necessityof preparing for sentencing guideline making the character of defendant withoutcriminal records applicable, and I will give the sentencing guideline.