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김재희(金宰姬),박광민(朴光玟) 성균관대학교 법학연구소 2008 성균관법학 Vol.20 No.2
The discussion on sentencing is becoming the hot issue in a learned circle and practical business. Those discussions basically come up with an issue up to the judge"s discretionary assessment. Hence, an irrationality of the sentencing would be brought out for a rational and transparent (objective)guidelines dismissing irrationality relevant to sentencing.<BR> Meanwhile, most crimes generate by an interaction between a victim and a perpetrator. Therefore, as determining the punishment, unless all the circumstances related to the victim should be considered, it is impossible to judge the whole circumstances relevant to a crime accurately. In accordance with that, the victim"s role should be considered in the course of a sentencing. From the view that a crime is a results of a mechanical interaction between victim and perpetrator, the judgment of the victim"s role against the perpetrator"s illegality and responsibility takes a critical part in sentencing. In spite of that, according to the Article of Criminal Code 51-2, it regulates the matter only as to "relation with victim". The law, however, just leave the examination on the victim in the lump as judge"s discretion relevant to judgments. Whereupon, it should be raised more concrete and segmental new guideline for the objective and rational sentencing, notfollowing existing judgement. With the matter, we will look into the victim"s role as a factor of sentencing which decreases illegality and responsibility related to a crime. First, we defined the concept among the polysemy of the victim and followed a sentencing course detaily. On the basis of such system, examining the victim"s role in sentencing, we especially inquired into a contributive extent of the victim to a crime as the other party by types.<BR> It is necessary that the sentencing theory should be tried to find out the concept which is more precisely and intersubjectively verifiable about the circumstances relevant to "relation with victim. It could offer the judges to the right material of sentencing and also provide the perpetrator as well as victims and their familes to the persuasive sentencing. Besides, a right guidelines for a victimological study would also be offered.
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