법정형과 양형기준의 관계에 관한 고찰 - 폭력범죄를 중심으로 -

In 2007, the Republic of Korea founded its Sentencing Commission by amending the Court Organization Act. Since then, Korea has gradually established the Sentencing Guideline for major crimes to guarantee unity and objectivity of judicial power. In consequence, Korea, a country with substantive criminal law background in the civil law, has now ended up with two different kinds of standards, a ‘statutory penalty’ proposed by legislators and a ‘sentencing guideline’ proposed by the Sentencing Commission. In that sense, it is evident that establishing the normative relationship between these two standards is a prerequisite for drawing up a reasonable Sentencing Guideline. The Sentencing Guideline, which has a normative character, is not a sentence itself but a general standard prepared in advance to decree punishment. Thus, the relationship between statutory penalty and the Sentencing Guideline can be described as that of a general rule and a detailed rule regarding the choice of types and terms of punishment. Distribution of sentencing is definitely an important reference to the establishment of the Sentencing Guideline but it cannot be regarded as a decisive factor which justifies establishment of category ranges. A number of problems can be found when we examine the recently announced Sentencing Guidelines for violent crimes with respect to the relationship of these two standards. First of all, the Sentencing Guideline's classification of offence disregards the legislative decision, which has prescribed additional requirements separately. Secondly, with regard to the choice of sentencing factor, the Sentencing Guideline treats sentencing factors as an element in law and other sentencing factors equally. Thirdly, the Sentencing Guideline treats all sentencing factors equally, while it needs to be pointed out that statutory penalty evaluates the degree of aggravation and mitigation individually. Lastly, it arouses suspicion that the Sentencing Guideline ignores statutory penalty and even the least normative relationship. A case in point which shows this is the fact that the maximum punishment of the sentencing guideline is below the minimum punishment of statutory penalty in some offences. These problems should be resolved by statutory penalty reform by the legislature. The Sentencing Guideline should be carefully crafted in conformity with the civil law nature of and fulfill its role as the ‘statutory penalty’s detailed standard’.