양형인자로서의 심신미약: 규범과 현실 - 정신질환으로 인한 심신미약을 중심으로

Currently, Korea’s Sentencing Guidelines face limitations in suggesting appropriate measures for treatment and rehabilitation based on the defendant’s mental condition at the time of the offense and trial. Moreover, the guidelines are not designed in a way that sufficiently reflects the diminished criminal responsibility caused by mental illness in the final sentencing outcome. As a result, the guidelines fall short in fully serving their function as a framework that informs judges of the possible and appropriate sentencing options. This paper focuses on the following three issues in particular. First, the current Sentencing Guidelines divide the mitigating factor of diminished responsibility into two categories: “diminished responsibility (not attributable to the defendant)” and “diminished responsibility (attributable to the defendant).” However, such expressions fail to capture the essence of diminished responsibility, which refers to a state of reduced culpability situated between full responsibility and complete lack thereof. Furthermore, the distinction between “diminished responsibility (attributable to the defendant)” and cases excluded from diminished responsibility under Article 10(2) of the Criminal Act due to ‘actio libera in causa’ under Article 10(3) is unclear. Even assuming this classification is valid, it is difficult to say that the incorporation of these categories into sentencing factors across different types of crimes follows a consistent and principled approach. Second, even if the Sentencing Guidelines define “diminished responsibility (attributable to the defendant)” as a special mitigating factor under the category of actor/etc-specific circumstances, such a factor cannot exert sufficient influence under the principle that conduct-specific factors trumps actor/etc-specific factors in sentencing. Consequently, judges are left to question whether the sentencing range recommended by the Guidelines adequately reflects the reduced culpability of defendants with diminished responsibility due to mental illness. In homicide cases, crimes are categorized based on motive, and there is a significant disparity between the recommended sentencing ranges for each category. This amplifies the gap between a judge’s intuitive good sense of appropriate sentencing and the guidance provided. Furthermore, applying the same sentencing framework — originally designed to assess culpability based on motive for those with full capacity — to individuals who committed crimes in a state of diminished responsibility due to mental illness, despite their limited ability to choose alternative conduct, risks violating both the principle of culpability and the principle of equality. Third, the current Sentencing Guidelines do not adequately reflect perspectives of treatment and prevention, which are especially critical in sentencing individuals with mental illness. Nor do they sufficiently account for the risk of human rights violations that may arise when such individuals are incarcerated. This shortcoming is not merely a flaw in the guidelines themselves, but also reflects a broader structural failure in Korea’s criminal justice system namely, the absence of a sufficiently developed system for executing sentences that can ensure treatment-centered detention facilities and community-based mental health care and prevention. In light of these problems, there is a pressing need for new sentencing guidelines that enable judges to impose sentences consistent with the principle of culpability for defendants with mental illness-induced diminished responsibility, while also allowing for the selection of individualized dispositions that most appropriately address the needs of such defendants through a comprehensive consideration of treatment and prevention.