우리나라 양형기준 설정방식과 양형위원회 운용방식에 관한 점검 및 개선방안

An Evaluation on the framework of the Korean Sentencing Guidelines and on the Korean Sentencing Commission's Operation

It has been almost 5 years since the advisory sentencing guidelines system was introduced and the first guidelines implemented in our nation. Thus far, sentencing guidelines for 26 crime categories including murder are in force. The demand by the people to abolish such sentencing problems such as unduly lenient sentencing, unwarranted disparities, untransparent sentencing, and perhaps most serious "Jeon-Kwan-ye-Woo" or favor shown to counsel who are former prosecutors or judges, was the impetus for the introduction of the sentencing guidelines system. Since its implementation, there have been some improvement in the judges' compliance rate as well as in consistency and predictability in sentencing; however, the people's deep rooted distrust toward the criminal justice system has yet to be significantly alleviated. The basic characteristics of the current sentencing guidelines and Commission activities are still skewed in favor of judges’ sentencing practice, that is the Commission has been slow to set forth new guidelines and the guidelines still allow for much judicial discretion. Furthermore, the guidelines lack objectivity in the evaluation of the major sentencing factors thereby failing to fully gain the public’s trust. With the end of the trial period, the problems that arose demand immediate attention and resolution. Nonetheless the Commission has yet to initiate the reform process, seemingly content with the current gradual approach in promulgating sentencing guidelines. To achieve the sentencing reform goals in accordance with the intent of the introduction, the current sentencing guidelines need substantial revisions. This should begin with a thorough discussion and evaluation of the goals and principles in framing guidelines. Other pressing issues include grading the seriousness of the major offenses and setting the base level of each offense, raising objectivity when evaluating the major sentencing factors, establishing guidelines on deciding appropriate punishment, and enhancing objectivity in the criteria for the in-out decision. Other suggestions include mandating judges to explain the guidelines application process in the sentencing report and the development of a sentencing data base by the Commission to improve predictability in sentencing. These proposals for revision aim to create a new guidelines system which corresponds with the common sense of the public. As it is highly unlikely that the incumbent judiciary dominating Commission will accept or implement these suggestions, the composition of the Commission must first be rebalanced with members from outside the judiciary. Neutrality, independence, and specialization of the operating style of the Commission must be improved and the role of the public and the National Assembly should be reenforced and expanded. Only through these efforts will the new guidelines become more objective to the public with a view to a greater and genuine trust by the public of our nation's criminal justice system.