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Proving of Sentencing Factors
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양형인자의 증명

논문 기본 정보

Type
Academic journal
Author
Hyung Kwan Park (가천대학교)
Journal
가천대학교 법학연구소 가천법학 가천법학 제8권 제4호 KCI Accredited Journals
Published
2015.1
Pages
1 - 34 (34page)

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Proving of Sentencing Factors
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In response to public demand for objective and just sentencing, the sentencing guidelines system was introduced 6 years ago. These guidelines are advisory in that judges are not bound to follow them but in the case of any departures or deviations from the recommended sentence, a written explanation is required. It would follow that a thorough investigation of any related sentencing factors be conducted before applying the most appropriate guidelines in any given case. Hence, before recommending an appropriate sentence, the Sentencing Commission would undertake the task of discerning which sentencing factors out of a myriad would be applicable. Discussions concerning the proof process and investigative procedure of sentencing factors have been less than exhaustive. It has been traditionally held that the entire sentencing factor investigation procedure falls under the realm of judicial discretion because sentencing factors are distinct from the actual criminal act in and of itself. However, it is now widely accepted that factors that affect the scope and severity of punishment should be treated under the same strict proof rules and procedure as the factors that determine guilt. It is imperative to begin discussion about the framing of evidentiary procedure regarding sentencing factors that are described in the sentencing guidelines. Because of the wide variety of sentencing factors, they should be separated into categories and studied severally. While the majority of these sentencing factors should be examined under strict proof rules and procedures, the balance must at the least be examined in procedures where the basic principles of due process are guaranteed. The successful implementation of the sentencing guidelines system is dependent on a thorough and complete sentencing hearing procedure where all necessary considerations have been obliged. The sentencing hearing procedure should be reframed within the adversarial framework and although efficiency is emphasized, it should be secondary to objectivity and transparency. Henceforth, while probation officers may be involved in the investigation of sentencing factors, these officers should not be employed within and by the judiciary because they may not be qualified for the task and more importantly, because the conflict of interest would negatively affect the transparency of the process as well as the adversarial structure. Finally, because of its subsequent impact on the rights and duties of citizens, the main features of the new sentencing hearing procedure must be clearly defined by statute.
#Sentencing guidelines #Proving of Sentencing factors #Strict proving #Sentencing hearing #fair and reasonable proving

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강구진 / 1982 / 판례교재 형사소송법원론 / 법문사 google schola 권오병 / 1962 / 개정 형사소송법 / 일신사 google schola 배종대 / 2013 / 신형사소송법 google schola 양형위원회 / 2008 / 우리나라에 적합한 양형기준제 – 제1차 공개토론회 google schola 양형위원회 / 2014 / 2013 연간보고서 google schola

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