양형기준에서 피해자중심 접근: 영국 양형위원회의 절도죄 양형기준을 중심으로

Abstract

This article reviews victim related factors in 'Theft Offence Definitive Guidelines in England and Wales', published in 2015 and seeks to implications for improving Sentencing Guidelines in Korea. 'Step one' and 'step two' in applying English sentencing guidelines are most important steps. 'Step one' determines offence category and 'step two' adjusts upward and downward movements from the starting point in the appropriate category range, based on the consideration of aggravating and mitigating factors. To illuminate the way to consider victim-related factors in sentencing guidelines, the article focuses on these two steps. In the 'Theft Offence Definitive Guidelines in 2015', harm is assessed in two respects: financial loss and any additional harm. Adding 'any additional harm' to the assessment of financial harm is to consider any detrimental subjective harm in the victim's respect. In Korea, ‘General Theft Sentencing Guidelines' considers "personal or social harm" as special sentencing factors when the degree of harm is considerably serious and has not been recovered. However, concerning the definition of special sentencing factors, the article asserts following matters for further considerations. First, for full consideration ofharms in sentencing process, harm factors in sentencing guidelines need to be divided into financial and personal respects as in the English theft sentencing guidelines. Second, instead of one simple factor of "in the case of high degree of personal or social harm", harm factors should be divided into 'personal' and 'social' harm factors, thereby balancing the various factors respectively in applying sentencing guidelines. Third, considering that special sentencing factors be balanced without qualified consideration of mitigating and aggravating ones, 'personal' and 'social' harms should be considered respectively. Fourth, the definition of sentencing factors of "personal or social harms" includes "other appropriate cases." However, this inclusion of "other appropriate case" in the "personal or social harms" is likely to work as a factor of the non-exhaustive list. Thus, the scope of this factor needs to be shortened. And lastly, in the assessing principle of sentencing factors, the factor of "victim's intention of not punishing the offender" is considered as 'offence' factor, not as 'offender/other factor' of the special sentencing factors. However, in the case when social harm is considerably serious, current frame of considering social harm factor and victim's intention of not punishing the offender as equal factors should be reconsidered.