양형요소로서의 반성에 관한 인식적 정의론 — 대법원 2025. 12. 11. 선고 2025도10910 판결 —

Supreme Court Decision 2025Do10910, rendered on December 11, 2025, ruled that in sentencing proceedings, a defendant's assertion of mental disability or need for treatment cannot be considered a ‘characteristic aggravating factor of lack of remorse’ and used as grounds for imposing a heavier sentence. Current sentencing guidelines define sincere remorse as “cases where genuine remorse is recognized.” However, immediate reactions and moral emotions like remorse, regret, or guilt arise involuntarily; the actor cannot exercise control over them. Within the current criminal law system, responsibility cannot be imposed for factors beyond the actor's control. Therefore, this study first examines moral responsibility theory to explore how moral philosophy might assign responsibility for a lack of remorse, ultimately proposing answerability as the most appropriate form. Next, we expand the individual-level moral responsibility to the societal level by examining the theory of epistemic justice. Among epistemic injustices, testimonial injustice involves unfairly discounting the credibility of statements due to structural bias against the speaker. Thus, statements by criminal defendants expressing remorse are often evaluated as formulaic and prone to being untruthful. Next, hermeneutic injustice occurs when a specific social group lacks collective interpretive resources, preventing them from understanding or properly expressing parts of their own experience. This corresponds to situations where a defendant, who internally possesses clear recognition and emotion of remorse, cannot publicly convey this to the court, or where their remorse is not accepted as sincere. Thus, this interpretive resource deficiency regarding ‘sincere remorse’ was common not only to the defendant but also to the defense counsel and the judiciary. Furthermore, negatively evaluating the very act of asserting diminished mental capacity as an attempt to evade responsibility, thereby excluding it from sentencing arguments even in situations where it could legitimately be claimed as the manifestation of psychiatric symptoms, represents a classic case of epistemic injustice that hinders the defendant's epistemic contribution. This was the basis for the reversal of the subject judgment. Epistemic injustice, like other forms of injustice, is more threatening and starkly evident among socially disadvantaged and vulnerable groups, yet it is simultaneously taken for granted and thus easily rendered invisible. In cases like the defendant in the subject ruling—a person with disabilities and a juvenile offender—the injustice of hermeneutic exclusion and epistemic contribution exclusion could have reached extreme levels. However, the Supreme Court issued a ruling resolving this epistemic injustice. The most decisive contribution of the subject ruling to resolving epistemic injustice was its holding that evaluating the defendant's claim of diminished mental capacity as merely an excuse to evade criminal punishment or an attempt to mislead the court constitutes an exceptional circumstance. It further held that such an evaluation requires thorough and sufficient examination of the defendant's mental disability status. This transformed the previously highly ambiguous and potentially arbitrary criticism of “not sincerely remorse” into a form consistent with epistemic justice. This ruling represents not only an advance in the epistemic justice of reflection but also suggests that punishment following reflection can become an opportunity oriented toward treatment and restoration.