대법원 양형기준의 동기요소에 대한 분석 = Analyses of Motive Factors in Korean Sentencing Guidelines

다국어 초록 (Multilingual Abstract)

A motive of a criminal act is a factor that, though it is not contained in criminalelements, can be considered to determine blameworthiness of a criminal act. Koreansupreme court’s use of ‘motive’ factor to construct sentencing guidelines of every groupof crimes seems appropriate. Also, the way korean supreme court is using motive factorscan be understood as innovation. Nonetheless, reflecting on the current form andstructure of korean sentencing guidelines, reformation of the guidelines is necessary. Because korean sentencing guidelines classified sentencing factors into three categoriesfollowing degrees and qualifications of factors, its’propriety should be reviewed andexamined at this point. In fact, the structure which the guidelines have is far away fromthe conventional and typical way of consideration of sentencing factors. A ‘motive’ is not a criminal element and does not have a formal structure. Moreover,a motive may come from an unconscious state of mind under which a criminal actor didnot realize it by himself. To prove a motive factor is much more difficult than to provecriminal elements, such as intention or negligence. Assessing a motive is so difficultbased on its various values that become different according to cases. To understand amotive in a case, a large variety of information regarding circumstances of that case andalso even many relevant facts of a defendant’s life should be gathered. It can become outside of a defendant’s control and responsibility. A motive factor is much more flexible and can have more various meanings in therethan a purpose element. Nevertheless, motives come to possess posited forms in koreansentencing guidelines. Each level of a motive factor that has a power to determine aparticular scope of punishment should be more examined. At least, a motive should bea sentencing factor which has its meaning within statutory requirements. In conclusion, a motive factor that is posited in korean sentencing guidelines shouldbe reviewed and reformed. Korean sentencing guidelines arbitrarily overuse motivefactors without any standards and principles. Intolerable contradictions amongdefinitions of motive factors in the guidelines often appear. Even, a definition of a motivefactor in the guidelines is in violation of statutory definitions. It is suspicious in whichprinciples a motive factor has its place in the structure of the guidelines. That is, it isdifficult to acknowledge consistency and propriety of distribution and definition ofmotive factors. Most of all, it comes from the fact that korean sentencing guidelines arenot formed with a good form and structure for appropriate sentencing.