임의적 감경 사건에 관한 판례평석 - 대법원 2021. 1. 21 선고 2018도5475 전원합의체 판결 -

One of the main reasons why people distrust the judicature may be due to the fact that different punishments are being sentenced for similar criminal acts. The academia and the judiciary have paid keen attention to how to control the judicial discretion exercised by judges in determining sentences. Moreover, since the Sentencing Committee was established and the Sentencing Guidelines were implemented, the guidelines have continuously been set and revised. However, it seems that there has been a significant lack of discussion about arbitrary statutory mitigation that has a crucial impact on determining the scope of the presumptive term, which in turn sets the boundary for imposing a final sentence. In the arbitrary mitigation case, the primary issue was whether the practical interpretation of arbitrary statutory mitigation was valid. The Opinion of the Court held that the current practice of mitigating both the upper and lower limits to one-half in accordance with the Article 55 of the Criminal Act is appropriate, and that judges have the authority to decide whether to apply an arbitrary statutory mitigation. Opinion by Ki-taek Lee dismissed the defendant's appeal as with the Opinion of the court, but, instead argued that arbitrary statutory mitigation should be interpreted as including both "scope of mitigating" and "scope of not mitigating", and that therefore it would be reasonable to deduct only the lower limits of sentence by one-half at all times to accord with the actual decision-making processes of judges. Depending on whether a judge admits the arbitrary statutory mitigating factors and decides to deduct the sentence, the range of the presumptive term changes, resulting in a difference between the minimum and maximum possible sentences. Although the current interpretation of arbitrary statutory mitigation accepted by the courts seems valid, it would be necessary to reform the following problems: the relevant provisions are not clear enough; there are no measures in place to control the discretion of judges on arbitrary statutory mitigation; the courts stick to the practices that may be violating the criminal law. Accordingly, it could be suggested ① to deem arbitrary statutory mitigation as applicable to the Article 323 of the Criminal Procedure Act and make it mandatory to specify whether to admit the arbitrary statutory mitigation factors, ② to apply arbitrary statutory mitigation even if there is “no need” to bring down the lower limit of the presumptive term and rectify the defective sentencing processes in practice. Just because the application of arbitrary statutory mitigation corresponds to the discretion of a judge, the process or method of the judgment must not be left to the discretionary area. The court should begin to reverse the original trial, in case when a defendant’s claim of an arbitrary statutory mitigating factor is not reviewed thoroughly, so that the judicial discretion regarding arbitrary statutory mitigation would be properly controlled to protect the defendant's right.