죄와 형의 비례성에 비춘 양형기준과 양형심리에 대한 분석적 고찰

Apprendi v. New Jersey decided by the United States Supreme Court mandated the procedural protection to try and prove the fact to enhance punishment just like an elemental fact. That is, the decision of Apprendi connect the procedural right with the substantive principle of proportionality. Ironically, it should be noted that the substantive aspect of proportionality itself does not provide any objective and firm standard. The United States Supreme Court has failed to find out the workable model of the substantive proportionality but has been relatively successful to provide the constitutional protection of procedure. The first case of the issue in this paper that looks very similar to the Apprendi decision will be the monumental turning-point of sentencing process. However, it must face the difficulty in completely realizing the principle of proportionality. It is expected to play watch role if a court actually enhance a punishment beyond korean sentencing guidelines. Korean sentencing guidelines become a paper based on which a defendant ask for his procedural right. For sure, it is a great progress in korean sentencing system.