양형실무의 변화와 과제 - 양형기준제도 및 양형심리를 중심으로 -

Since the early days the court recognized that appropriate sentencing greatly impacts the fairness and credibility of the criminal trial process as a whole and put forth much effort to impose appropriate sentencing but failed to meet the high expectations of the public. As part of the effort, a system of sentencing guidelines was introduced in Korea. Such system had been rejected in civil law countries and only a few countries like England and United States amongst common law countries had adopted it. The Korean Sentencing Guidelines are not a simple copy of a foreign system but a unique version adapted to reflect the local practices and circumstances. Five years have passed since the inception of the Sentencing Guidelines and as a personal assessment of the progress, first of all, the Sentencing Guidelines are successfully becoming established within the trial practice. While sentences were imposed in the past based on a judge’s intuition and experience, it has now become more objective in accordance with the standardized framework. Analysis on the statistics of certain crimes indicates that the strictness and balance of sentencing have improved due to the implementation of the Sentencing Guidelines. The Sentencing Guidelines have significantly impacted the practice of sentencing, considering that compliance rate reached almost 86% even though the Sentencing Guidelines are not binding. Secondly, some have criticized the Sentencing Guidelines, but it’s not uncommon for such criticisms to be theoretically or ideologically biased and they do not fully take into account that the outcome was based on efforts to make Sentencing Guidelines more effective with higher regulatory power. Lastly, practices should be established to offer reasons for imposing a certain sentence so that the process of applying the Sentencing Guidelines can be disclosed and in particular, when a prescribed sentence falls outside the Sentencing Guidelines’ sentencing range, specific reasons should be provided. Establishment of the Sentencing Guidelines alone will not suffice in order to reform the sentencing system as the public desires. The system must be supported by sentencing hearings so that relevant materials for sentencing that are precise and in detail can be submitted and reasonable assessments are achieved. Unfortunately, even after the introduction of the Sentencing Guidelines, it appears that adequate sentencing hearings are not being carried out at criminal trials and the effectiveness of the system has been limited. To rectify these problems, the court established a new model for sentencing hearings at major courts across the nation with the primary goal of achieving standardization and objectification through research by a court officer who is solely responsible for research on sentencing and a process of discussion on the results of research. The new model, however, requires a substantial expansion on the number of research officers in order to be implemented at all criminal courts across the nation. For this purpose, the Criminal Procedure Act must be amended to add new legislation concerning research on sentencing materials, as originally planned to be introduced during the judicial reform period.