성범죄 집행유예 기준의 세분화 필요성에 관한 연구

An Empirical Support for the necessity of a specific guideline on the suspended sentence throughout the analysis of in-out decision for sexual offense

The suspended sentence has been utilized frequently as an important tool in the criminal justice system in Korea. However, it was failed to attract concerns of legal scholars and practitioners as a subject of research topics in spite of the importance and actual application in the field. The article of 51 and article of 61 in Criminal Act state that characteristics of the offender, and relations to the victim, motivation and other circumstances shall be taken into consideration in determining the punishment as allowing the suspended sentence up to 5 years. Because these statement included vague and abstract contents which arouse any different decision by judges, it could be connected with discretion issue of the judges when it combines with the simple guideline of the suspended sentence. These concerns on discretion of judges are explained by the limited substantive rationality theory and the focal concern theory. Recently, there are legal researches which insisted a necessity of subdivided guidelines on the suspended sentence varied by the length of the prison sentence. The purpose of this paper is to support the view ofthe necessity for subdivided guidelines of the suspended sentence on sexual offense as examining using the empirical data. For this purpose, a current paper reviewed previous literatures on suspended sentence and analyzed the raw data on sexual offense which has the most complicated sub-crime group. The result showed the current guideline of the suspended sentence for sexual offense had more power to predict for sexual molesting than forcible rape, and for the sentenced offenders of less than 2 years than less than 3 years in predicting in-out decision. In addition, we found that the each subgroup has different significant factors to predict in-out decision by the length of sentence and type of sexual offense. Finally, current research supports the previous assertion which insisted the necessity of the subdivided guidelines for suspended sentence by length of sentence using empirical evidence. The detailed results and policy implications will be discussed in the context.