양형에 관한 한일비교연구

Abstract

The Sentencing Commission was created in accordance to the provisions of the Court Organization Act amendment of 2007, especially in order to attack the problematic practice of Junkwan Yewu. The sentencing guidelines, which are open to the public, may not be legally binding but must be respected by the judges in rendering decisions as which to the category and period of sentencing should be involved. The General Secretariat Office of the Commission provides the necessary administrative support and assistance. Before the introduction of the sentencing guidelines judges have often been too lenient with politicians, bureaucrats and businessmen accused of bribery, influence peddling, embezzlement, and other forms of corruption. As the Supreme Court insisted, the goal of sentencing guidelines has been to restore the public trust in the justice system. Nevertheless, sentencing practice has been not yet improved. In comparison to Korea, so-called ‘Sentencing Trade Market(Contemplation)’ that is based on the previous accumulation of the datas of sentencing practice has been established in Japan, in oder to avoid the unfairness of the sentencing practice. This paper is trying to compare the practice of sentencing guideline in Korea with that of sentencing trade market (contemplation) in Japan. The analyse of this comparative perspective on sentencing practices of Korea and Japan shows striking similarities with slightly minor differences. The main task is to give the propriate limitation to the descretionary power of the judges with regard to sentencing penalities.