학술논문
재범에 대한 형가중제도
이용수 44
- 영문명
- Enhancement of Sentence for Recidivism
- 발행기관
- 한국형사법학회
- 저자명
- 최병각(Choi Byung-Gak)
- 간행물 정보
- 『형사법연구』형사법연구 제20권 제2호, 149~166쪽, 전체 18쪽
- 주제분류
- 법학 > 법학
- 파일형태
- 발행일자
- 2008.01.25
4,960원
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국문 초록
영문 초록
This article analyses enhancement of sentence for recidivism including repeat offence, habitual offence and multiple offences in Korean Criminal Law, especially in comparison with California"s Three Strikes Law.
The purpose of the Three Strikes law is to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offences. Under the mandatory sentencing scheme the court must double the sentence of felony charged for two strikers. And the court must impose a sentence of at least twenty-five years to life for the three strikers. Especially a recidivist cannot be granted probation or have his sentence suspended. Repeat offenders can only serve their sentences in state prison and they must serve at least eighty percent of there sentence to be eligible for parole. Only a prosecutor can move to dismiss an alleged prior felony conviction in the furtherance of justice or if there is insufficient evidence to prove the prior conviction. But the California Supreme Court held that a trial judge could, on his or her own motion, dismiss a prior strike in the interest of justice.
There are three ways to enhance sentence for recidivists in Korea. If a defendant is convicted of repeat offence which has been committed within 3 years after release or exemption from imprisonment, the upper term is increased to two times. When a person commits several acts which could be integrated as a habitual offense, he or she shall be punished by increasing one half of sentence for normal offence or otherwise enhanced sentence. In cases a criminal is convicted multiple offences in the same proceeding or separate proceedings, the final penalty will be the most severe sentence, one half of that, or parallel imposition.
In order to ensure proper sentence for recidivism, we need to adopt the mandatory sentencing schemes such as Three Strikes law. And specialized penalty with narrower boundary is necessary as a starting point.
The purpose of the Three Strikes law is to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offences. Under the mandatory sentencing scheme the court must double the sentence of felony charged for two strikers. And the court must impose a sentence of at least twenty-five years to life for the three strikers. Especially a recidivist cannot be granted probation or have his sentence suspended. Repeat offenders can only serve their sentences in state prison and they must serve at least eighty percent of there sentence to be eligible for parole. Only a prosecutor can move to dismiss an alleged prior felony conviction in the furtherance of justice or if there is insufficient evidence to prove the prior conviction. But the California Supreme Court held that a trial judge could, on his or her own motion, dismiss a prior strike in the interest of justice.
There are three ways to enhance sentence for recidivists in Korea. If a defendant is convicted of repeat offence which has been committed within 3 years after release or exemption from imprisonment, the upper term is increased to two times. When a person commits several acts which could be integrated as a habitual offense, he or she shall be punished by increasing one half of sentence for normal offence or otherwise enhanced sentence. In cases a criminal is convicted multiple offences in the same proceeding or separate proceedings, the final penalty will be the most severe sentence, one half of that, or parallel imposition.
In order to ensure proper sentence for recidivism, we need to adopt the mandatory sentencing schemes such as Three Strikes law. And specialized penalty with narrower boundary is necessary as a starting point.
목차
Ⅰ. 들어가는 말
Ⅱ. 재범에 대한 형가중
Ⅲ. 미국 캘리포니아 주 삼진법
Ⅳ. 양형법제의 문제점과 개선책
Ⅴ. 맺음말
〈Abstract〉
Ⅱ. 재범에 대한 형가중
Ⅲ. 미국 캘리포니아 주 삼진법
Ⅳ. 양형법제의 문제점과 개선책
Ⅴ. 맺음말
〈Abstract〉
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