새로운 양형환경에서 작량감경 규정의 개선방안

Article 11 of the Constitution stipulates that 'all the people are equal before the law'. But in real life, as the saying that 'the moneyed are guiltless, and the moneyless are guilty' is popular, it has been pointed out that the length of prison term varies depending on social statuses of the accused. Such perception among the people has raised distrust in criminal justice system. Such a distrust stems from the vagueness of sentencing standards by providing judges with too lenient freedom in sentencing such as discretionary mitigation. Discretionary mitigation is justifiable in the sense that, if the statutory terms of imprisonment are too harsh, it can be used to alleviate such harshness. In the Korean criminal law, statutory terms of imprisonment for many crimes are harsher than the cases of other countries. So, there is room to allow some degree of discretionary mitigation. But, the problem is that there has been continuous criticism that, as the provisions for discretionary mitigation are too comprehensive and abstract, they lead judges to sentence too light terms of imprisonment. Comprehensive and abstract provisions on discretionary mitigation cause the cynicism of 'the moneyed are guiltless, and the moneyless are guilty', and distrust in criminal justice among the people. There have been various efforts to solve such side effects of discretionary mitigation. This study analyzes the cases where discretionary mitigation is applied and identifies its problems, and examines foreign laws and ideas on revising criminal laws, and, based on such analysis and examination, suggests a way to revise discretionary mitigation. In the practices of applying discretionary mitigation, it has been pointed out that judges have tended to apply discretionary mitigation too widely, and terms of imprisonment they have sentenced concentrate on the lowest limits of them. It is difficult to assess to what degree statutory terms of imprisonment should be above the lowest limits. But, in the situation where concrete reasons for discretionary mitigation are unclear, it has been used to recognize discretionary ability of judges and as means to lower harsh statutory terms of imprisonment, and, thus, there have been practices of sentencing 'lower terms of imprisonment'. Consequently, to improve fairness and equity of sentencing, the provisions of discretionary mitigation should be got rid of. And, considering the fact that if the discretionary mitigation is abrogated, statutory terms of imprisonment get longer, the work of adjusting terms of imprisonment should be pursued simultaneously. And, if the provisions of discretionary mitigation are abrogated, it is necessary to include what can be concretized among the major reasons for applying discretionary mitigation as mitigating factors in sentencing guidelines. For such purposes, sentencing guidelines need to be revised. First, it is necessary to provide sentencing guidelines with practical binding power, by which judges will sentence the accused within proper ranges. Second, it is necessary to examine sentencing factors to assess whether they are rational and valid. By evaluating criteria for applying sentencing factors again, we can solve the problem of discretionary mitigation. And, finally, by forcing judges to state clearly application processes of sentencing guidelines in their rulings, it is necessary to make it possible to review the processes. Through such processes, we can secure transparency and objectivity of sentencing, realize the principle of legality, and achieve the ideals of the principle of criminal liability and legal stability.