책임범위이론에 기초한 현행 양형기준의 개선방안

The existing sentencing guidelines can be positively assessed in that the guidelines pursued balance between sentencing theory and sentencing guidelines based on the theory of scope of responsibility, but the existing guidelines do not always accord with the theory because the existing guidelines excessively depended on sentencing practices in the past when scope of penality and sentencing factors are classified but did not mention modification of scope of responsibility. In this context, the author in this study considered appropriateness of the (adjusted) theory of scope of responsibility by reviewing sentencing theories to present measures of improvements in sentencing guidelines. The principles of the adjustment for improving sentencing guidelines can be as follows. First, scope of penalty should be modified and overlapping in the scope should be solved. Second, basic recommendation penalty should be established. Third, special sentencing factors and general sentencing factors should be adjusted. Special sentencing factors can be defined to be factors related to illegality and responsibility of criminal acts and general sentencing factors can be defined to be factors related to situations before and after a crime and prevention. Fourth, differentiation of behavior factors and agent/other factors should be removed. Fifth, scope of penalty should be specifically adjusted on the basis of the number of special sentencing factors.