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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.
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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.
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