[논문] 양형의 규범논리

• 영문명: [ARTICLE] Legal Principles on Sentencing
• 발행기관: 한국형사정책학회
• 저자명: 최정학(Cheong-Hak Choi)
• 간행물 정보: 『형사정책』형사정책 제17권 제2호, 251~274쪽, 전체 24쪽
• 주제분류: 사회과학 > 정책학
• 파일형태: PDF
• 발행일자: 2005.12.01

영문 초록

This essay aims to suggest some legal principles on sentencing process. In Korean criminal case, there has not been enough consideration about sentencing process. Samely, in academic field there has been few development on sentencing legal principles. Basically, this problem results from the thesis that sentencing belongs only to the judicial discretion. Therefore, this essay argues we have to consider it as an application of law, even though it may vary from time to time according to the judges. Next, this essay tries to invent some legal principles on sentencing, namely, the order and direction of sentencing judgement. This is composed of three arguments. At first, this essay reviews the amount of punishment of current Korean criminal law. It has not been changed for a long time, so we can say that it is too severe as for a present standard, especially in case of Special Criminal Laws. Secondly, as a basic principle of sentencing this essay argues the incorporation of responsibility and prevention. As two big purposes of punishment, these concepts has conflicted for such a long time, but, they can be considered together in the perspective of so called 'functional responsibility'. Lastly and most importantly, this essay argues the legal method of sentencing. It has following three stages. That is, firstly finding sentencing factors, and secondly fixing the influence of the factors, and thirdly making the order of consideration among these factors. Definitely, the principles proposed in this essay is not complete. It needs further analysis of more cases and broader discussion for theoretical development.

목차

Ⅰ. 머리말

Ⅱ. 양형의 법적 성격

Ⅲ. 미국의 양형기준표

Ⅳ. 양형의 규범논리

Ⅴ. 맺음말