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한국형사정책학회> 형사정책> 형사법학자대회 발표문 : 우리나라 양형기준 설정방식과 양형위원회 운용 방식에 관한 점검 및 개선방안

KCI등재

형사법학자대회 발표문 : 우리나라 양형기준 설정방식과 양형위원회 운용 방식에 관한 점검 및 개선방안

Article as presented at the Conference of Scholars on Criminal Affairs : An Evaluation on the framework of the Korean Sentencing Guidelines and on the Korean Sentencing Commission`s Operation

박형관 ( Hyung Kwan Park )
  • : 한국형사정책학회
  • : 형사정책 26권2호
  • : 연속간행물
  • : 2014년 08월
  • : 7-42(36pages)
피인용수 : 51건

(자료제공: 네이버학술정보)

DOI


목차

Ⅰ. 서론
Ⅱ. 양형기준 설정 행위의 법적 성질
Ⅲ. 양형기준 설정 및 적용 방식에 관한 평가
Ⅳ. 양형위원회 운용방식 평가
Ⅴ. 결론

키워드 보기


초록 보기


						
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.

UCI(KEPA)

I410-ECN-0102-2015-300-000230842

간행물정보

  • : 사회과학분야  > 법학
  • : KCI등재
  • :
  • : 계간
  • : 1226-2595
  • :
  • : 학술지
  • : 연속간행물
  • : 1986-2019
  • : 675


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1형사법학자대회 발표문 : 우리나라 양형기준 설정방식과 양형위원회 운용 방식에 관한 점검 및 개선방안

저자 : 박형관 ( Hyung Kwan Park )

발행기관 : 한국형사정책학회 간행물 : 형사정책 26권 2호 발행 연도 : 2014 페이지 : pp. 7-42 (36 pages)

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초록보기

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.

2학교폭력문제해결을 위한 학교 차원의 회복적 사법의 적용

저자 : 홍봉선 ( Bong Sun Hong ) , 남미애 ( Mi Ae Nam )

발행기관 : 한국형사정책학회 간행물 : 형사정책 26권 2호 발행 연도 : 2014 페이지 : pp. 45-79 (35 pages)

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The study is to introduce school social welfare practices adopting restorative justice as an alternative paradigm toward school violence and to suggest their applicable tasks in the future. With an emphasis on literature research, it has surveyed restorative justice and school violence, problems facing school violence adolescents and difficulties of supporting systems for them. It has also examined about why restorative justice at schools should be employed and how it could be applied in a Korean society. The research result shows that restorative justice approaches have already been widely used as an alternative toward school violence in other countries. The result also shows that restorative justice at school is useful for both repairing the harm on behalf of victims and reinforcing accountability and reintegrating into schools of offenders. Moreover, it helps reinforce community and recover relationships on the basis of respects and trust of victims and offenders built by mediation of family, friends, teachers, and school. And school welfare workers not only directly engaged in various programs Experts from various fields such as school welfare workers and school counselors provided diverse programs and services using a couple of restorative justice models at schools - mediation model, consultation model and circle model - targeting at from regular students to seriously harmed school violent victims, and also indirectly intervened by providing services, matches of resources and post management. To expand restorative justice at schools, it is identified that model development of school social welfare practices based on restorative justice in a Korean society, development of programs and training professionals, development of techniques, verification of effectiveness, and school welfare workers` positive intervention towards school violence are necessary.

3「부정청탁 금지 및 공직자의 이해충돌 방지법안」에 대한 문제점 및 개선방안 -금품수수 및 적용대상 확대 문제를 중심으로-

저자 : 이성기 ( Seong Ki Lee )

발행기관 : 한국형사정책학회 간행물 : 형사정책 26권 2호 발행 연도 : 2014 페이지 : pp. 81-104 (24 pages)

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This article aims to identify problems raised on and alternative measures to the KimYoungran Bill(hereinafter, the Bill) which was proposed in August of 2012 by Kim, Young-Ran, the former chairwoman of the Korean Anti-Corruption and Civil Rights Commission to punish officials` illegal gratuity acts and regulate conflict of interest among current, former public officials and their relatives who improperly influence public officials taking advantage of their former public status. Through the Sewol-ho tragedy occurred on April 16, it has been obvious that corruption rampant in Korean reached a very serious level that needs an immediate measure to guarantee transparent and fair execution of official duty in our society. This paper analyzes the highly controversial codes of the Bill and other similar bills proposed by the government and congressmen: 1) the illegal gratuity crime and its related codes, 2) the issue on extending the scope of official to private school teaching staffs and personnel working for a mass media organization. Based on the analysis, the paper argues that the code on illegal gratuity of the Bill possibly violates the constitution against the principle of clarity and that the code allowing the scope of application to private teaching staffs and mass medial personnel is possibly unconstitutional violating the principle of proportionality. This study, therefore, suggests some revisions on the relevant codes to avoid disputes about the unconstitutionality and to guarantee effective enforcement of the Bill.

4우범자관리제도의 문제점에 관한 연구

저자 : 황문규 ( Mung Yu Hwang ) , 박노섭 ( Ro Seop Park )

발행기관 : 한국형사정책학회 간행물 : 형사정책 26권 2호 발행 연도 : 2014 페이지 : pp. 105-130 (26 pages)

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The increasing fear of violent crimes, that have recently occurred, has led to stronger management of potential criminals by the police. As a result, the number of potential criminals under police supervision which counted 17, 038 cases in 2008 grew to 37, 005 cases in 2012, an increase over 117% in the recent 5 years. However, the fear of civilians has not diminished. In fact, the efficiency of the current potential criminal management is more in question, now that recently committed crimes were known to have been caused by potential criminals in the management. The police pointed out the lack of legal ground for effective management of potential criminals, which led to attempts to legalize the system. These attempts however, did not result in any visible outcome, due to conflicts in human rights that have occurred during the process and doubts in the efficiency of the management. Thus, the question whether it would be necessary to legalize the potential criminal management or not still stands open. Also undetermined is the effectiveness of the management. This study examines the essence of the management of potential criminals. The current system presented problems from selecting a potential criminal to management by overstepping the boundaries of human rights without having any legal grounds. Its ambiguous criteria for proper assessment, problems in the management itself and its dubious effectiveness, shows limitation in the current system, that is not easy to overcome. Therefore, this study suggested abolishing the current management of potential criminals and establishing supplementary policies as a solution.

5국가재건최고회의 집권기의 사형제도에 대한 비판적 검토

저자 : 이덕인 ( Deok In Lee )

발행기관 : 한국형사정책학회 간행물 : 형사정책 26권 2호 발행 연도 : 2014 페이지 : pp. 131-168 (38 pages)

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This study tried to inquire into how the death penalty system served during the military government period that was continued for 2 years 7 months from May 16, 1961 to December 17, 1963 before the establishment of Third Republic in South Korea. I could examine the situation at that time restrictively through empirical analysis of death sentence and execution and observe the real condition of revolutionary court and what its result meant. I also inquired into the death sentences regarding usual criminal cases and public safety cases such as spy case and their problems. In company with that, I could look back a series of situations that went against constitutionalism and human rights in the elements of a crime which was the normative basis of death sentence and the investigation and criminal proceedings which was the premises of it. But the distinct conclusion of this study is that even though I want to abolish the death penalty, I also provide the chance of rethink about series of cause and effect such as the goal to fulfill social security and system maintenance and to strengthen state punishment power for those who support the maintenance of death penalty and present the reasons for an argument not just to continue to judge the position based on humanitarian standpoint and express its stance for those who support the abolition of death penalty. To conclude, I hope social discussion about death penalty would be developed in the future more substantially and earnestly making basic guidance because it is the unescapable issues of criminology in discussion in the realization process of real constitutionalism making headway toward the state pointing to human dignity and right.

6공동체주의 관점에서 형법이론의 새로운 구성을 위한 시도

저자 : 류전철 ( Chen Chel Ryu )

발행기관 : 한국형사정책학회 간행물 : 형사정책 26권 2호 발행 연도 : 2014 페이지 : pp. 169-196 (28 pages)

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The main issue of traditional criminal law is to secure individual liberty by establishing the reason and limitation of punitive authority. The background of this traditional criminal law is the constitutional democracy whose political philosophy principle is liberalism. In the liberalism, it is fundamentally important to secure the individual liberty, in particular, the liberty through which individuals are able to design and correct happy lives. Therefore, liberal nations should adhere to a kind of neutrality when citizens pursue their virtues. If nations are not neutral, they may infringe into the dignity of human. Such a liberal perspective also shows the tendency to secure the liberty of individual from excessive punitive authority on the premise of opposite composition of individual liberty and national punitive authority. And this theory of criminal law is still supported and seems to be valid in these days. However, it is the problem that the theory of criminal law with liberal tendency may disrupt the role and function of criminal law in the modern society. For example, the position of Supreme Court and common view which acknowledge the occurrence reason of aid duty for abandonment very narrowly can be recognized as liberty-directed interpretation rather than social community. In addition, the economic criminal law area such as criminal tax-evasion or fraud of national subsidy results in liberal perspective-dominated theory of criminal theory and its application also gives rise to the negative result, a crack of social community. This paper attempts to base the constitution of criminal law theory on 'communitarian' perspective discussed as a method to solve the problems occurred due to restriction of traditional theory of criminal law in the political philosophy. In the individual or social benefit and protection of the law area such as economic criminal law area, abandonment and sex crime, which are often biased toward liberty of actor, the interpretations of crimes regarding sexual customs and forgery related with public trust are developed by newly reorganizing the existing theory of criminal law from the communitarian perspective.

7중요참고인 출석의무제도에 대한 비판적 고찰과 참고인진술 확보방안의 제

저자 : 이희경 ( Hee Kyung Lee )

발행기관 : 한국형사정책학회 간행물 : 형사정책 26권 2호 발행 연도 : 2014 페이지 : pp. 197-222 (26 pages)

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The testimony of a material witness in criminal investigation plays an important role in determining the facts of a crime, proving guilt, and securing objective evidence. However, witness investigation depends on voluntary cooperation, leaving an investigative agency with no means to compel a witness`s presence and statement if a witness refused to cooperate. The Korean Department of Justice, in a 2010 pre-announcement of legislation, attempted to provide for this ability to compel the attendance of material witnesses. However, this bill never became law due to opposition stating that the bill violated the principle of voluntary cooperation and violated the rights of witnesses. However, the adoption of material witness compulsion remains an issue that may be reignited at any time for the cause of discovering substantive truth and processing cases in a timely manner. This paper therefore critically considers the arrest of material witness provisions in the Justice Department`s amendment bill. No doubt the Justice Department`s attempts to adopt legal means to compel the attendance of material witnesses is due to its usefulness for the discovery of substantive truth, in addition to preexisting means to secure witness testimony such as evidence preservation and application to examine witnesses. However, the solution contemplated by the Justice Department violates the principle of voluntary cooperation, and also the principle of due process pertaining to the suspect`s or defendant`s right to defense. Some call for adopting this compulsion of witnesses based on laws adopted by foreign jurisdictions, but these countries differ from Korea in their investigative environments, judicial systems, and the stature and authority of investigative agencies. The better alternative, therefore, is to raise the effectiveness of evidence preservation and applications to examine witnesses. In order to efficiently secure witness statements, the witness`s personal security must be guaranteed, measures must be taken so witnesses may be summoned and enter appearances conveniently, cost recompense made realistic through means such as day wages, and public consciousness raised through publicity and education so that witnesses will voluntarily cooperate with investigations.

8진술거부권 행사 피고인의 양형 가중 문제 고찰 -마약, 강력범죄 등 중한 범죄 유형을 중심으로-

저자 : 조인현 ( In Hyun Cho )

발행기관 : 한국형사정책학회 간행물 : 형사정책 26권 2호 발행 연도 : 2014 페이지 : pp. 223-254 (32 pages)

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The right to remain silent follows from the development and expansion of the role of defense system. The Miranda warning acknowledged the common-law right to remain silent. The right to remain silent was regulated in the Fifth Amendment of the United States of America. But it is open to the court to draw appropriate inferences from the Criminal Justice and Public Order Act 1994(CJPOA) in England. It might be stressed that the CJPOA has not abolished the right to remain silent in the commom-law. It would be better to think about the guidance of estimating sentencing factor for the defendant who has the right to remain silent Nowadays the court has a dilemma for the defendants who have exercised the right to remain silent. At this situation for the most important thing, it needs criteria of sentencing guidelines in the korean jury trial. We have to pay close attention to allow the visual record to be introduced as evidence in trial, even in the case that we ask the prosecution or police to record the investigation procedure to guarantee the transparency of that procedure. However, in sentencing stage, the court could draw adverse inferences from the defendant who is apparently guilty in retrospective of the objective evidence. Labeling and Criminal Careers plays an important role in persistent criminal behaviours. Thus it must be appropriate criminal policy for the application of sentencing factors to resolve labeling against the defendants at the transient period of the korean criminal justice system.

1
주제별 간행물
간행물명 수록권호

KCI등재

한국의료법학회지
12권 1호 ~ 27권 1호

교회와 법
6권 1호 ~ 6권 1호

KCI등재

법조
68권 5호 ~ 68권 5호

KCI등재

법과 사회
61권 0호 ~ 61권 0호

KCI등재

법학연구
29권 3호 ~ 29권 3호

BFL
90권 0호 ~ 91권 0호

KCI등재

홍익법학
20권 3호 ~ 20권 3호

KCI등재

법학논총
36권 3호 ~ 36권 3호

KCI등재

법학연구
75권 0호 ~ 75권 0호

KCI등재

법학논집
24권 1호 ~ 24권 1호

KCI등재

피해자학연구
27권 2호 ~ 27권 2호

KCI등재

서울대학교 법학
60권 3호 ~ 60권 3호

KCI등재

법과 정책연구
19권 3호 ~ 19권 3호

KCI등재

고려법학
94권 0호 ~ 94권 0호

교회와 법
3권 1호 ~ 5권 1호

KCI등재

법학논총
43권 2호 ~ 43권 2호

KCI등재

상사판례연구
32권 3호 ~ 32권 3호

KCI등재

외법논집
43권 3호 ~ 43권 3호

KCI등재

세계헌법연구
25권 2호 ~ 25권 2호

KCI등재

법교육연구
14권 2호 ~ 14권 2호
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