우리나라 양형위원회 양형인자의 도출의 문제점 및 개선방향

Issues and Solution Approaches in Producing Sentencing Factors by the Korean Sentencing Commission

In order to correct the irrationality of the sentencing practices, to reflect constructive common sense of the public in sentencing, and to realize just and objective sentencing that the public can trust, the Sentencing Commission, established in 2007, based on focused endeavor, passion and dedication, adopted detailed guidelines on sentencing adults (aged 19 or more) for murder, bribery, sex crimes, robbery, embezzlement, malpractice, perjury and false incrimination, which are applied to crimes prosecuted after the first of July 2009. The second Sentencing Commission is discussing establishment of sentencing guidelines for fraud, document forgery, theft, abduction, food and healthcare related crimes, drug crimes, and obstruction of justice. Sentencing guideline system adopted by the current Sentencing Commission produces different sentencing factors depending on offenses, since it follows the individual, narrative approach of the UK guideline, rather than the grid-style American guideline that covers all crimes. However, such system results in a very complicated sentencing guideline. It is more troubling that the identical sentencing factors are assessed differently depending on crime cases. For example, while “a person's participation in crime activities due to coercion or threat by others” is a factor that can reduce sentence, the current sentencing guideline applies this factor only to theft and embezzlement, excluding murder and bribery. Objectivity of a sentencing guideline will lose its meaning if the factors that produce concrete sentence are inconsistent. Even the best written laws and punishments can ruin the principle of legality, the last bastion of public freedom, if their components are unclear. On this wise, consistent sentencing factors are key to sustaining validity of sentencing guidelines. While establishing objective and fair guidelines for sentencing proves validity of the sentencing method, reviewing rationality of sentencing factors will prove validity of the results of sentencing. Against this backdrop, this study seeks to solve the issues of inconsistent sentencing factors under the current guideline system. Pursuit of fairness and objectivity in sentencing is not an empty call for utopian ideal, but is a foundation for achieving a practical ideal of realizing constitutional justice for the public and creating an integrated venue for human-centered dialogue of mutual respect.