현행 형법에서 법정형의 정비방안

Abstract

The main idea stipulated in this article is as follows:1. Systematic reorganization of elements of offenses is prerequisite condition to organization of statutory punishments under current Criminal Law. Applaudable objective of such reorganization of the elements of offenses is to supplement the current law with more precise and specific prescription of the elements. 2. It is an abstruse work to develop an absolute criteria applicable to determine the adequate degree of specification of elements of offenses that are not excessively limitary to the sentencing discretion of a court. By reference to foreign legislations,nonetheless, established factors consisting the elements of offenses which have been embodied in lex specialis through the elements of offenses and the sentencing factors consisting the criteria for sentencing under the existing special criminal laws, must be incorporated into the elements under the Criminal Law. 3. As to the provisions that have identical elements of offenses and merely prescribes additional statutory punishments under the special criminal laws, they should be repealed by modifying the provisions in the Criminal Law. For those provisions that creates additional or independent elements of offenses, these elements should be incorporated into the basic provisions in the Criminal Law on selective basis. 4. It is desirable that the sentencing factors, which are de facto functioning as elements of offenses, among those consisting the criteria for sentencing determination become the elements of offenses through amendment of the Criminal Law. 5. Special consideration should be given to the a priori or normative standards, as well as empirical standards extracted from the collected data of sentencing practices when determining the sentence of an offense under statutory punishments of newly prescribed elements of offenses, or adjusting the statutory punishments under the existing elements. 6. As to determining the statutory sentence for a category of offences which preventive security measures may be sentenced concurrently, the statutory sentence should be set up in consideration of the preventive security measures to be sentenced together. Study on plans for clear prescription of the extent of possible preventive measures for offences respectively must be followed. 7. It is inevitable that the statutory punishments be adjusted as a consequence of extended ceiling of limited penal servitude. It is also desirable to provide more descriptive and specified upper and lower limit for individual offences in doing so.