사후적 경합범과 법원의 양형재량권

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".