특정강력범죄의 처벌에 관한 특례법 제3조의 위헌성」에 대한 小考

In determining the scope of the statutory sentencing guidelines for crimes, the demand of Article 10 of the Constitution that human dignity and value must be respected and protected against the threats of punishment should be met, and “the principle of individualized punishment” should be applied to uphold the spirit of the prohibition against excessive legislation under Article 37(2) of the Constitution. There should be an appropriate balance so that the punishment imposed corresponds to the quality of the crime and the actor's responsibility. To conclude, the provision at issue in this case, Article 3 of the Act on Major Crime and Punishment seems to be unusually “cruel and excessive” in its sentencing guideline since the punishment looks like to be disproportionate to the offence and the offender. Therefore, the provision at issue is against the idea that our country ruled by law and devotes to protect human dignity and value since it fails in balancing between the offender's responsibility and the criminal punishment, violating the principle of prohibition against excessive legislation since it conspicuously deviates from the one necessary for achieving the original function and purpose of the criminal punishment, violating the principle of equality that Article 11 of the Constitution prescribes.