형법속의 상습범과 누범 가중, 그리고 대안으로서의 양형기준의 활용

The purpose of this paper is to shed new light on the discussion for aggravated punishment on habitual offense and repeated offense in the penal code. In light of the purpose, this paper summarized the debates of pros and cons of the system and reviewed the empirical researches which examined the deterrence effect of the aggravated punishment. Using the previous researches, we confirmed that the aggravated punishment without a certainty of the punishment or informal social control may not guarantee the deterrence effect. In addition, we verified that the previous empirical researches supported a necessary aggregation of the punishment for repeated offenders or/and habitual offenders. As taking a disapproval side toward the aggravated punishment, this article expects to utilize a sentencing factor in the sentencing guidelines as an alternative aggravation. In light of the opinion, this paper showed that the current sentencing guidelines have enough aggravating factors including a factor of habitual offense and/or repeatedoffense. That is, this paper supported that it is enough to consider the sentencing factors as an aggravation tool for habitual offense and repeated offense, but the penal code. Detailed discussion will be reviewed in the context.