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사후적 경합범과 법원의 양형재량권The Concurrent Offences of the latter part of the Criminal Law § 37 and the Court's Discretionary Power in the Examination of an Offence

Other Titles
The Concurrent Offences of the latter part of the Criminal Law § 37 and the Court's Discretionary Power in the Examination of an Offence
Authors
정준섭
Issue Date
Sep-2010
Publisher
한국형사법학회
Keywords
the Substantive Concurrent Offences; several offences; the Discretionary Power in the Examination of an Offense; the Aggravation Principle; the Concurrent Offences of the latter part of the Criminal Law § 37; 실체적 경합범; 수죄; 양형재량권; 가중주의; 형법 제37조 후단 경합범
Citation
형사법연구, v.22, no.3, pp.297 - 322
Journal Title
형사법연구
Volume
22
Number
3
Start Page
297
End Page
322
URI
https://scholarworks.sookmyung.ac.kr/handle/2020.sw.sookmyung/7230
DOI
10.21795/kcla.2010.22.3.297
ISSN
1598-0979
Abstract
Regarding the punishment of the Concurrent Offences of the latter part of the Criminal Law § 37, the Criminal Law § 39 ① which was amended in 2005 rules "the sentence … can be decreased or exempted." On this article, the Supreme Court decided that the court could decrease or exempt. However, the Supreme court's decision seems to be inappropriate, considering both the purpose of the amendment of the Criminal Law § 39 and the equity of the Concurrent Offences of the former part of the Criminal Law § 37. In other words, what the court decides with "considering equity" means that the court should examine the view of equity in making sentence and decrease or exempt the sentence if the court finds that the sentence should be decreased or exempted. Therefore, it should be interpreted that the court should decrease or exempt the sentence, except that the sentence should be increased after deciding the sentence with "considering equity".
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