우리나라 양형기준 설정의 주요 쟁점과 과제

For the first time among the countries of civil law tradition, this country adopted a set of sentencing guidelines to build a structured sentencing system and the guidelines will come into operation on July 1, 2009. In reforming the current sentencing system to be more consistent and well organized, the purposes of our sentencing guidelines must be clearly established and I believe the followings could be such purposes: (1) dissolving unjustifiable disparities in sentencing handed down in the courts around the country; (2) promoting public safety and preventing future crimes; (3) providing just punishment to be proportional to the seriousness of the crime committed; and (4) effective using of the limited resources available to the judiciary. The following issues have been raised in the course of setting out the sentencing guidelines: (1) the stage at which the sentencing guidelines to be applied; (2) the scope of crimes to be covered by each guideline; (3) whether the sentencing guidelines should be pronounced concurrently or gradually; and (4) the way of reflecting the correlation between individual sentencing factors and the sentencing. In order to simplify the sentencing guidelines and make those guidelines to be consistent to the substantive criminal law at the same time, the Sentencing Commission made the guidelines to be applied on the eve of the judge's final sentencing decision. Moreover, in order to fully reflect the characteristics of each crime and minimize the problems with the commencement of enforcing the guidelines, the Commission set up the individual sentence guidelines for each crime on a gradual basis and did not assign any numerical value on each sentencing factor despite the Commission segregated sentencing factors based on each characteristics with providing the evaluation principle and suggested three sentencing ranges for each crime category. For a successful reform of sentencing system by establishing the sentencing guidelines, I believe the followings must be accompanied: (1) improvement of criminal sentencing procedures; (2) review and/or revise of the substantive criminal law; (3) reform of the sentence enforcement system.