양형실태 분석을 통한 양형기준 개선방안 고찰* - 양형기준 시행 후의 횡령·배임죄 판결을 중심으로 -

After conducting studies and analyses for two years, from 2007 to 2009, in April 2009, the Sentencing Guidelines Commission formulated sentencing guidelines for the crimes of homicide, bribery, sexual assault, robbery, embezzlement/breach of trust, perjury, and false charges and enforced the application of these sentencing guidelines to the related crimes as of July 1, 2009. The present study is very important, as it examines the present state of concrete sentencing judgments, at a point when the sentencing guidelines have been in effect for approximately four years, and it evaluates whether the sentencing guidelines have been properly observed since their enforcement, and whether the observance of the sentencing guidelines ensures the expected predictability of jurisdiction. To that end, the present study, centering on the judgments on the crimes of embezzlement/breach of trust out of the crime groups subject to the sentencing guidelines currently in effect, analyzes the actual conditions of sentencing by examining all first trial judgments applied according to the sentencing guidelines between July 1, 2009 and December 31, 2010. The present study intends to seek measures for enforcing the sentencing guidelines more efficiently by examining whether the intent and objectives of the introduction of the system were properly implemented in 2009 and evaluating the results of the enforcement by conducting an extensive analysis. The analysis focuses primarily on three matters in the sentencing guidelines that are in need of improvement. First, the sentencing guidelines for the selection of types of penalties in cases where the statutory punishments include several types of punishments, particularly in cases where personality servitudes and pecuniary punishments coexist, are necessary, as well as those for pecuniary punishments. Second, for the sentencing guidelines to be effective, actual binding force should be given to the sentencing guidelines. Third, the writing of the reasons for sentencing in written judgments should be compulsory. Furthermore, the way of writing the reasons for sentencing in written judgments should be unified to enable the post hoc verification/improvement of the sentencing guidelines, thereby ensuring greater transparency and objectivity in sentencing.