형사입법 및 판결형성과정에서 비례성원칙의 의의 및 한계

Importance and Limit of the Proportionality Principle in Criminal Punishment

The criminal justice system imposes punishments to crimals, it should do so only in proportion to the responsibility of crimes to which it seeks to respond. Therefore, the principle of proportionality in criminal punishment is a fundamental aspect of most modern legal systems. Despite the obvious importance of the proportionality principle in criminal sentencing, the concept of proportionality itself is poorly defined in the law and the theories concerning it are the subject of much unresolved debate. The ideal form of proportionality and its role in punishment have been the subject of much academic discussion, and several theories have emerged, including that of retributive proportionality, utilitarian proportionality, and the concerns of ordinal and cardinal proportionality. Retributive proportionality concerns the history of the offender and considers proportionality as a means to the punishment goal of retribution by measuring a sentence according to the offender’s blameworthiness. In contrast, utilitarian proportionality is prospective rather than retrospective, with proportionality measured against sentencing goals which concern the future rather than the past, such as deterrence, rehabilitation, and cost to society. Since punishment harms and dissatisfies those upon whom it is inflicted, it can only be justified insofar as it produces a net amount of other benefits or satisfaction exceeding the harm. As the concept of utility is wholly consequentialist, the moral concept of ‘just deserts’ cannot be the reason for punishment. Instead, punishment is only justified inasmuch as its beneficial effects, for instance in deterrence, exceed the harm it produces. Finally, it is ultimately an unattainable ideal and is, at best, a goal to be continually strived for. This paper seeks to explain the role of proportionality in modern legal systems such as Germany and Korea, delve into the problems and difficulties posed by the principle of proportionality, and then explore how this principle may be understood in a more meaningful and practical way