벌금형 양형기준에 관한 연구

백광균 ( Baek Kwangkyoon ) 사법정책연구원 2020 연구보고서 Vol.2020 No.15

The Sentencing Commission under Supreme Court of Korea, being established in the wake of the judicial reform, has refurbished major offence-specific guidelines for jail sentences for the past 13 years, however has yet to set forth the guidelines on fines except for the election offence, the amount of which fines will be determinative on the validity of election. According to the statistics, fines penalty accounts for 80% of all the sentences imposed, remarkably well over 90% in some offences, showing far more ratio than jail sentences. England and Wales in the United Kingdom, and the United States, all of which had introduced sentencing guidelines before Korea, have put forward with the guidelines for some fine sentences. In England and Wales, the sentencing guidelines make it clear to the effect that the priority shall be given on the fines over community and custodial sentences. In the United States, federal sentencing guidelines for individuals and organisations are separated. In Germany, there has been no sentencing guideline, instead having major offence-specific sentencing practice as a form of commentary. Likewise, Japan has no sentencing guideline, but having the concept of sentencing market prices and major offence-specific sentencing practice as a commentary. Except for the United States’ federal jurisdiction, fine penalty ratios of above-mentioned jurisdictions stand at approximately 80% of all the sentences, similar to that of Korea. In Korea, as regards whether or not to introduce sentencing guidelines for fines, there have been pros and cons on the matters involving 3 elements, i.e., sentencing guidelines, fines and offenders’ sensibility to sentences, possibly indicating on the formula diversified by 6 manners; combinations of 3 patterns to determine the types of sentences, the sentencing category ranges or both of them, multiplied by variables of general or specific respectively. Each manner has its own merits and demerits, so that we need to be scrupulous enough in seeking the ways to bolster the advantages and to suppress the disadvantages. In addition, the above conclusions shall also be applied in search of sentencing guidelines for organisations, transferring the period of imprisonment for fines, and suspending the enforcement of fines.

벌금형 양형기준에 관한 연구

백광균(BAEK, Kwangkyoon) 사법정책연구원 2020 사법정책연구원 연구총서 Vol.2020 No.-

양형위원회는 사법개혁의 일환으로 설립되어 지난 13년간 징역형을 중심으로 주요 범죄에 대한 양형기준을 완비하였고, 벌금형에 대한 양형기준은 당선의 효력을 좌우할 만큼 양형의 중요성이 높은 선거범죄에서만 설정하였다. 그러나 통계로 보면, 벌금형은 전체의 80%를 차지할 만큼 건수 자체로서는 징역형보다 훨씬 많고, 유형별로는 90% 이상 벌금형으로 종결될 것으로 예상되는 범죄도 있다. 우리보다 먼저 양형기준을 도입, 운용한 영국과 미국은 모두 벌금형에 대한 양형기준을 설정, 활용한다. 영국 양형기준은 형을 선택할 때 벌금형, 사회형, 구금형 순서로 우선함을 명시한다. 미국 연방 양형기준은 개인과 단체에 대한 양형기준을 따로 정한다. 독일은 양형기준이 없고, 주요 범죄의 양형 실무를 정리한 주석서가 통용된다. 일본 역시 양형기준은 없으나, 양형 시세라는 개념이 통용되며, 주요 범죄의 양형 시세를 정리한 문헌이 있다. 미국 연방을 제외하면, 모두 양형에서 벌금형이 차지하는 비중은 80% 전후로서 우리와 엇비슷하였다. 벌금형 양형기준은 양형기준, 벌금형, 형벌감수성이라는 3가지 요소를 바탕으로 도입론과 신중론이 대립하고, 형 선택, 형량, 형 선택과 형량이라는 3가지 국면에서 공통과 개별의 2가지 기준을 조합한 6가지 방식이 가능하다. 제각각 장단점이 분명하므로, 실제 도입할 때는 장점을 살리고 단점을 줄이는 방향으로 지혜를 모아야 한다. 더불어 검토할 법인, 환형 유치, 벌금형 집행유예에 대한 양형기준에서도 마찬가지이다. The Sentencing Commission under Supreme Court of Korea, being established in the wake of the judicial reform, has refurbished major offence-specific guidelines for jail sentences for the past 13 years, however has yet to set forth the guidelines on fines except for the election offence, the amount of which fines will be determinative on the validity of election. According to the statistics, fines penalty accounts for 80% of all the sentences imposed, remarkably well over 90% in some offences, showing far more ratio than jail sentences. England and Wales in the United Kingdom, and the United States, all of which had introduced sentencing guidelines before Korea, have put forward with the guidelines for some fine sentences. In England and Wales, the sentencing guidelines make it clear to the effect that the priority shall be given on the fines over community and custodial sentences. In the United States, federal sentencing guidelines for individuals and organisations are separated. In Germany, there has been no sentencing guideline, instead having major offence-specific sentencing practice as a form of commentary. Likewise, Japan has no sentencing guideline, but having the concept of sentencing market prices and major offence-specific sentencing practice as a commentary. Except for the United States’ federal jurisdiction, fine penalty ratios of above-mentioned jurisdictions stand at approximately 80% of all the sentences, similar to that of Korea. In Korea, as regards whether or not to introduce sentencing guidelines for fines, there have been pros and cons on the matters involving 3 elements, i.e., sentencing guidelines, fines and offenders’ sensibility to sentences, possibly indicating on the formula diversified by 6 manners; combinations of 3 patterns to determine the types of sentences, the sentencing category ranges or both of them, multiplied by variables of general or specific respectively. Each manner has its own merits and demerits, so that we need to be scrupulous enough in seeking the ways to bolster the advantages and to suppress the disadvantages. In addition, the above conclusions shall also be applied in search of sentencing guidelines for organisations, transferring the period of imprisonment for fines, and suspending the enforcement of fines.

수사기관 작성 조서의 증거 사용에 관한 연구 : 2020년 개정 형사소송법에 따른 실무 변화 모색

이상훈 ( Lee Sanghoon ),정성민 ( Jeong Sungmin ),백광균 ( Baek Kwangkyoon ) 사법정책연구원 2021 연구보고서 Vol.2021 No.14

The history of the enactment and revision of the Korean Criminal Procedure Act has been a long and bumpy road to constantly reflect on and overcome trials largely dependent on protocols prepared by investigation agency, so-called “protocol trials” and to realize trial-centredness. As a result, the Criminal Procedure Act 2020 restricted the use of evidence in suspect interrogation reports in an unprecedented and innovative manner. Germany prohibits the use of protocols themselves as evidence in accordance with direct principles, but it allows the presentation of them in the course of investigator testimonies or for the impeachment in question, and the contents of the protocols can be used as the basis for judgment. France seeks efficient handling of cases by professional judges actively presenting and investigating protocols in court. Japan has been trying to realize the principle of trial- centredness by reducing the use of protocol as evidence with the introduction of the trial by lay judges. England and Wales has devised and expanded the hearsay rule to protect the poor status of defendants, but has again reasonably adjusted its scope with the improvement of the defendants’ status. The United States selects and reviews necessary cases through a plea bargaining system, but uses police investigators’ testimonies, not protocols, in a trial. The impact of the Criminal Procedure Act 2020 on the overall criminal trial needs to be considered around two pillars: the litigation economy and the ascertainment of substantive truth. In line with the above revision, practices must also be changed, and alternatives including examinations of defendants and witnesses, investigator testimonies, the use of protocols as evidence for impeachment can be considered. The sentencing for denying defendants should also be widely considered.