적정형벌 부과를 위한 죄수론 - 미국과의 비교법적 고찰을 중심으로 -

This article addresses the necessity of revising provisions of the Korean Criminal Act that restrict judicial discretion in evaluating the appropriateness of punishment in concrete cases, undertaking a comparative analysis with U.S. law. It examines the impact and limitations of the Korean doctrine of concurrence of crimes on sentencing, and seeks possible reforms to ensure the imposition of proportionate punishment through a comparative study with the United States. The study points out that, under current Korean law, the treatment of both substantive concurrence and hypothetical concurrence as multiple offenses, together with the principle of limitation on cumulative punishment grounded in the protective function of criminal law, has remained unchanged without substantial amendment. This has led to persistent concerns that large-scale and organized crimes are not punished with sufficient effectiveness. In contrast, U.S. federal and state law clearly distinguishes between the adjudication of guilt and the sentencing phase, and sets forth principles and exceptions for the imposition of concurrent or consecutive sentences. Unlike the Korean approach, which restricts the imposition of multiple severe sentences by uniformly limiting judicial discretion in cases of concurrence, U.S. law adopts a more differentiated framework. For crimes involving related conduct, and especially in cases of organized or large-scale fraud affecting multiple victims, the U.S. system generally prescribes consecutive sentencing, while also allowing for aggregation or adjustment with respect to relevant conduct. This dual-track approach may serve as a useful reference point for Korean law, enabling it to overcome the formal constraints of statutory penalties and to establish a system of concurrence of crimes that ensures proportionate punishment—neither unduly lenient nor excessively harsh.