위증죄의 형량과 양형인자 연구 (The Factors of sentencing guideline for perjury offenders)

서지정보

· 발행기관 : 한양대학교 법학연구소
· 수록지 정보 : 법학논총 / 30권 / 3호 / 151 ~ 174페이지
· 저자명 : 황만성

초록

The first sentencing guidelines of 2009 were on the offences of murder, rape,robbery, embezzlement, bribery, and perjury. In developing sentencing guidelines,the Commission chose to set individual guidelines on each types of offences, andnot to give any numerical values on each sentencing factors.
Each sentencing factors are defined as aggravating or mitigating one. Sentencingranges are divided into aggravating, mitigating and general range.
The main purposes of this study is to analyze the application of sentencingguideline for perjury offenders. The 880 cases of perjury offenses which were sentencedfrom July 1, 2009 to December 31, 2010 are analyzed. Based on an analysisduring 18 months after the implement of the 1st sentencing guideline, there was noradical changes on sentencing practices. The 481 perjury offenders are sentenced tojail, 220 perjury offenders are punished with a fine. Among 481 perjury offenders,408 offenders are a stay of execution.
Current sentencing guideline system, however, has its own limits, in that it hasnot yet provided guidelines on fine. Moreover, the guideline system is not compatiblewith sentencing principles of the Criminal Act.
There lacks clarity in the definition of sentencing factors on offence and onoffender. This may not justify the principle that sentencing factors on offence shallhas priority over those on offender.
Even though this sentencing standards are advisory, the fact that the announcementof this standards make many people have a norm in sentencing and by doingso it is expected to bring gradual changes in a good way. While the sentencingstandards provide certainty and fairness, it may prevent to permit sufficient judicialflexibility to take into account relevant aggravating and mitigating factors. Therefore, it is necessary to reconsider the sentencing standards as take considerinto this points.

영어초록

The first sentencing guidelines of 2009 were on the offences of murder, rape, robbery, embezzlement, bribery, and perjury. In developing sentencing guidelines, the Commission chose to set individual guidelines on each types of offences, and not to give any numerical values on each sentencing factors.
Each sentencing factors are defined as aggravating or mitigating one. Sentencing ranges are divided into aggravating, mitigating and general range.
The main purposes of this study is to analyze the application of sentencing guideline for perjury offenders. The 880 cases of perjury offenses which were sentenced from July 1, 2009 to December 31, 2010 are analyzed. Based on an analysis during 18 months after the implement of the 1st sentencing guideline, there was no radical changes on sentencing practices. The 481 perjury offenders are sentenced to jail, 220 perjury offenders are punished with a fine. Among 481 perjury offenders, 408 offenders are a stay of execution.
Current sentencing guideline system, however, has its own limits, in that it has not yet provided guidelines on fine. Moreover, the guideline system is not compatible with sentencing principles of the Criminal Act.
There lacks clarity in the definition of sentencing factors on offence and on offender. This may not justify the principle that sentencing factors on offence shall has priority over those on offender.
Even though this sentencing standards are advisory, the fact that the announcement of this standards make many people have a norm in sentencing and by doing so it is expected to bring gradual changes in a good way. While the sentencing standards provide certainty and fairness, it may prevent to permit sufficient judicial flexibility to take into account relevant aggravating and mitigating factors. Therefore, it is necessary to reconsider the sentencing standards as take consider into this points.

참고자료

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