형벌감수성에 대한 비판적 고찰 - 양형철학의 관점에서 -

Traditionally, the sentencing is recognized as the discretion of ​​the judiciary. This has brought various problems as well as advantages. To resolve this problem, the Korean Supreme Court has introduced and applies the sentencing guidelines at the end of a long discussion. The Korean Supreme Court pursues the ‘formal rationalization’ of the sentencing process through these sentencing guidelines. However, the formal rationalization of the sentencing process brings another problem. It overlooks the ‘substantial equality’ of sentencing as a result of focusing much on the formal equality of sentencing. Recently, the courts in Korea are attempting to introduce ‘sensibility to punishment’ (Strafempfindlichkeit), a concept that has been developed in Germany, which is often found in the sentencing of the district court in Korea. Furthermore, theoretical reviews are being made regarding the application of Strafempfindlichkeit to the sentencing practice of Korea. If so, is it appropriate to adopt Strafempfindlichkeit completely for the purpose of making the sentencing process substantial again? What if it deepens “One law for the rich and another for the poor” under the name of the substantial equality of sentencing? This study is intended to review critically the possibility of introducing Strafempfindlichkeit to the sentencing practice of Korea based on the critical mind as above. To do this, this study seeks to examine the meaning and basic structure of sentencing (Ⅱ) and review what is Strafempfindlichkeit and which theories of sentencing underlie Strafempfindlichkeit and how Strafempfindlichkeit is applied (Ⅲ). Since Strafempfindlichkeit is the concept that has been developed in Germany, this study mainly refers to the discussions made in Germany. In particular, this study focuses on how to distinguish between ‘Strafempfindlichkeit’ and ‘Strafempfänglichkeit’ and how Strafempfindlichkeit can be understood according to ‘Spielraumtheorie’ and ‘tatproportionale Strafzumessungstheorie’. Last, this study seeks to address the three questions regarding Strafempfindlichkeit (Ⅳ). Based on this argumentation, this study emphasizes the limited introduction of Strafempfindlichkeit to the sentencing practice of Korea, pointing out the problems with the complete adoption of Strafempfindlichkeit. Therefore, this study claims that Strafempfindlichkeit must be considered for the so-called ‘socially disadvantaged’.