살인죄 양형에서 무기형 이상 부과기준에 관한 비교법적 고찰

Abstract

There is no denying that sentencing should be fair and objective in achieving criminal justice. Homicide, because of its seriousness, demands a commensurate level of fairness and objectivity in deciding these cases. In homicide sentencing, not only must the standards in deciding the term of imprisonment be transparent but the standards in which a decision between life imprisonment or the death penalty is made be equally clear with no unwarranted disparity. Unfortunately, guidelines for homicide as set in Korea allows for a broad sentencing range and the standards for imposing the death penalty or life imprisonment remain vague leaving much room for a judge’s discretion. It is a difficult task to determine what factors to consider when deciding between the death penalty or life imprisonment in homicide sentencing as well as what kind of procedure is appropriate. In this regard, it would be profitable to refer to the laws and sentencing guidelines of advanced countries. The countries where the death penalty have been abolished have necessarily developed more concrete provisions in imposing life imprisonment than South Korea. The consideration of only one or two major factors in deciding whether to impose the death penalty or life imprisonment may at the outset seem simple and clear but it undermines the distinctiveness in sentencing as it ignores the myriad of important aggravating and/or mitigating factors in each individual case. First of all, it would be reasonable to improve the guidelines for homicide sentences and to provide separate standards for selecting the death penalty or life imprisonment. It is necessary to present the criteria considering various aggravating and mitigating factors extracted from the analysis of sentencing practice and comparative legal review. Improved guidelines would at the first stage consider major sentencing factors such as premeditation, cruelty, the risk of recidivism and the number of victims as well as the motive for the crime. It is also pivotal to increase transparency at the next level of deliberations in deciding between life imprisonment or the death penalty by presenting any anomalies peculiar to the case. Expanding opportunities for various opinions to be aired in deciding between the death penalty or life imprisonment as in jury or citizen advisory trials would enhance objectivity and limit any prejudices that might be present in the individual.