고강도 형벌정책과 적정한 양형

Abstract

This essay studies current punitive trends in criminal policy, from the perspective of proportionality, uniformity and honesty in sentencing. It aims to review how to incorporate ‘fair and rational sentencing upon common knowledge and public confidence’by sentencing guidelines and sentencing commission of Korea. Firstly, the author asks what is punitive criminal policy and its cause and effect in Korean society. This will be followed by questions on the problems of such policy trends in criminal justice system. Such problems is to be dealt with in sentencing stage, where the legislature and the judiciary should gain public confidence by fair and effective criminal sanctions against crimes at issues, especially sexual violence on women and children. The basic objective of sentencing guideline system is to enhance the ability of the criminal justice system to combat crime through an effective, fair sentencing. To achieve this end, reasonable uniformity in sentencing should be achieved by narrowing the wide disparity in sentences imposed for similar criminal offenses committed by similar offenders. Proportionality in sentencing also needed by imposing appropriately different sentences for criminal conduct of differing severity. Moreover, sentencing policy should realize honesty in sentencing, which means common sense, public participation, transparency in proposing sentencing ranges and factors by individual guidelines. The vicious circle of punitiveness and public distrust in penal policy should be measured by fair and effective sentencing system. The structure of current sentencing commission and sentencing guideline should be open to more scientific research and public opinion.