양형기준 존중과 양형기준을 벗어난 판결

Sentencing Guidelines and Departure from Sentencing Criteria

Under Korean sentencing guideline system, judges shall respect the sentencing criteria of the guidelines when they choose the kinds of punishment and determine the periods of punishment. The sentencing criteria shall not have the legal binding power, but where any court hands down a judgment in deviation of the sentencing criteria, the court shall enter the grounds of its judgment in its written judgment. Rational sentencing policy depends on the rationalization of the sentencing guidelines. Sentencing criteria should reflect social changes and public attitudes to sentencing, and much more importantly, sentencing elements, both aggravating and mitigating elements for each definitive guidelines, and their evaluation should be systematized. The law may need to be amended to make sentencer enter the grounds of its sentencing decision in its written judgment for every sentencing under the guidelines. Such policy will makes criminal judges respect the guidelines, and the political aims of the sentencing guideline system, and thus public confidence on criminal justice system, including sentencing courts will be promoted.