국문요약 ··············································································1

❘제1장❘서 론 (박성훈) ·························································9
제1절 연구의 배경 및 목적 ········································································11
제2절 연구의 내용 및 방법 ········································································14

❘제2장❘우리나라 양형기준의 법제도적 분석 및
평가 (강우예) ·························································19
제1절 개요 ··································································································21
제2절 우리나라 양형기준의 성립과 변화 ····················································23
1. 양형기준의 수립 연혁 ··················································································23
가. 양형기준의 필요성에 대한 논의(2007년 전) ···············································23
나. 양형기준의 수립(2007~2010) ······································································27
다. 양형기준의 정착과 개정 (2010년 이후) ······················································43
2. 양형위원회의 설립과 구성 ···········································································44
가. 대법원의 양형합리화를 위한 노력 ·······························································44
나. 대법원 산하 양형위원회의 설립 ···································································46
다. 검찰 측의 양형위원회 개혁 법안 ·································································46
라. 소결 ·················································································································48
제3절 우리나라 양형기준제도에 대한 분석과 평가 ····································50
1. 양형기준에 대한 법이론적 분석과 평가 ·····················································50
2. 양형기준 수립 방법론에 대한 분석과 평가 ···············································53
가. 양형위원회의 통계에 대한 분석과 평가 ······················································53
나. 양형위원회의 의사결정 과정에 대한 분석과 평가 ······································65
다. 양형요소의 추출과 배치 방법에 대한 분석과 평가 ····································66
3. 양형기준의 구성과 내용에 대한 분석과 평가 ···········································69
가. 범죄군의 선정 ································································································69
나. 양형기준 구조의 적정성 ················································································71
다. 양형요소 추출과 배치의 적정성 ···································································77
라. 형량범위의 적정성 ·······················································································120
마. 양형기준의 효력에 대한 분석과 평가 ························································122
4. 범죄별 양형기준의 수정에 대한 분석과 평가 ·········································151
가. 살인범죄 양형기준 ·······················································································152
나. 성범죄 양형기준 ···························································································152
다. 강도범죄 양형기준 ·······················································································154
라. 약취･유인･인신매매범죄 양형기준 ·····························································155
마. 마약범죄 양형기준, 식품･보건범죄 양형기준 ············································156
바. 장물범죄 양형기준 ·······················································································156
5. 양형심리절차에 대한 분석과 평가 ····························································156
가. 개요 ···············································································································156
나. 양형절차 이분론 ···························································································157
다. 양형조사관 제도 ···························································································158
라. 양형심리 범위와 내용 ·················································································160

❘제3장❘우리나라 양형기준의 실증적 분석 및 평가(Ⅰ)
: 판결문 내용분석 (최이문·박성훈) ·····················165
제1절 개요 ································································································167
제2절 선행연구의 검토 ·············································································168
1. 양형기준제 관련 선행연구 ········································································168
2. 의사결정나무분석 ·······················································································175
제3절 연구방법 ·························································································179
1. 조사의 설계와 자료수집 ············································································179
가. 성범죄군 ·······································································································180
나. 강도범죄군 ····································································································182
다. 횡령･배임죄군 ······························································································183
2. 분석방법 ······································································································185
제4절 분석 결과 ·······················································································186
1. 성범죄군 ······································································································186
가. 판결문의 변화 ······························································································186
나. 선고형량의 변화 ···························································································188
다. 피고인의 특성에 따른 양형편차 ·································································192
라. 재판부 및 변호사 특성에 따른 양형편차 ··················································193
마. 성범죄 양형인자 분석 ·················································································195
바. 참작사유가 집행유예에 미치는 영향 ··························································206
사. 소결 ···············································································································211
2. 강도범죄군 ··································································································212
가. 판결문의 변화 ······························································································212
나. 선고형량의 변화 ···························································································216
다. 피고인의 특성에 따른 양형편차 ·································································218
라. 강도범죄 양형인자 분석 ··············································································220
마. 참작사유가 집행유예에 미치는 영향 ··························································228
바. 소결 ···············································································································234
3. 횡령･배임죄군 ·····························································································235
가. 판결문의 변화 ······························································································235
나. 선고형량의 변화 ···························································································236
다. 피고인의 특성에 따른 양형편차 ·································································241
라. 재판부 및 변호사 특성에 따른 양형편차 ··················································242
마. 횡령･배임죄 양형인자 분석 ········································································242
바. 참작사유가 집행유예에 미치는 영향 ··························································248
사. 소결 ···············································································································253

❘제4장❘우리나라 양형기준의 실증적 분석 및 평가(Ⅱ)
: 국민인식 조사결과 (박성훈) ·····························255
제1절 개요 ································································································257
제2절 선행연구의 검토 ·············································································259
제3절 연구방법 ·························································································266
1. 조사의 설계와 자료수집 ············································································266
가. 일반인 설문조사 ···························································································266
나. 빅데이터 분석 ······························································································269
2. 조사항목 ······································································································271
가. 일반인 설문조사 ···························································································271
나. 빅데이터 분석 ······························································································272
제4절 분석결과 ·························································································273
1. 양형기준 및 법에 관한 국민인식 및 태도 ···············································273
가. 법위반에 대한 태도 ·····················································································273
나. 법집행의 공정성에 대한 인식 ·····································································276
다. 현재 시급히 해결해야할 범죄 ·····································································278
라. 형사사법기관에 대한 신뢰 ··········································································280
마. 양형기준제 인지 ···························································································282
바. 법외적 요소가 양형에 미치는 영향에 대한 인식 ·····································283
사. 양형기준의 효과성에 대한 인식 ·································································286
아. 양형기준의 효과성에 대한 회귀모형 ··························································289
2. 시나리오 접근을 통한 일반국민과 법조인의 인식 비교 ·························291
가. 청소년대상 강간 사건 ·················································································291
나. 아동대상 강제추행 사건 ··············································································306
다. 음주운전으로 인한 교통사고 사망사건 ······················································337
3. 빅데이터를 통한 일반국민의 양형인식 변화 분석 ··································354
가. 양형기준제 시행 전후 버즈량 추이 ···························································354
나. 범죄유형별 사건 키워드 분석 ·····································································355
다. 범죄유형별 키워드 비교 ··············································································368
라. 양형관련 긍정키워드와 부정키워드 비교 ··················································371

❘제5장❘결 론 (박성훈·강우예·최이문) ··································375
제1절 주요결과의 요약 ·············································································377
1. 양형기준제도의 법･제도적 분석 결과 ······················································377
2. 양형기준제도의 실증적 분석 결과 ····························································380
가. 판결문 분석 결과 ·························································································380
나. 국민의식 조사 결과 ·····················································································382
다. 빅데이터 분석 결과 ·····················································································388
제2절 양형기준제도의 발전을 위한 정책 제언 ·········································389
1. 양형기준의 개선방안 ··················································································389
가. 양형기준체계의 합리화 ················································································389
나. 양형기준의 효력에 대한 검토 ·····································································391
2. 양형자료의 활용방안 ··················································································392
가. 양형정보의 공개와 투명성 확보 ·································································392
나. 양형분석을 위한 전문센터의 설립 ·····························································393
다. 정례적인 양형컨퍼런스 개최 ······································································395
3. 일반국민과의 소통증진 및 양형인식 제고방안 ········································397
가. 프레임 전략 ··································································································397
나. 표적집단 전략 ······························································································398
다. 커뮤니케이션 방식의 변화 ··········································································399
라. 범죄통계의 활용 ···························································································399
제3절 연구의 의의와 한계 ········································································400

참고문헌 ·········································································403

Abstract ········································································415

부록 ················································································427

우리나라는 1999년 대통령 자문기구인 사법개혁추진위원회가 설치되어 6개의 주요 사법개혁주제에 대해 논의하는 중에 양형기준제의 도입에 관한 문제가 처음 제기되었다. 사법개혁추진위원회는 법원조직법에 근거규정을 두고 상세한 내용은 대법원규칙으로 정하도록 하였고, 여러 차례 논의를 거쳐 2008년 처음으로 살인죄, 성범죄,뇌물죄에 대한 양형기준안이 만들어졌고, 2009년에는 강도죄, 횡령･배임죄, 위증죄,무고죄에 대한 양형기준안이 만들어졌다. 2009년 7월부터 앞서 제정된 7개 범죄유형에 대한 양형기준이 시행됨에 따라 우리나라도 양형제도가 본격적으로 시행되었다.대법원 산하의 양형위원회는 양형기준이 양형의 균등성과 적정성을 제고하고, 형사사법의 투명성과 합리화는 물론 양형실무의 현대화와 과학화의 구현에 기여하며, 나아가 사법에 대한 국민의 신뢰를 증진하는 것을 목표로 한다고 밝히고 있다.이처럼 우리나라의 양형기준제도가 본격적으로 시행된 지 약 6년의 시간이 흘렀다.비록 제도의 성과여부를 논하기에 짧은 기간이기는 하지만, 제도가 시행된 이후 그동안 양형실무에서 어떠한 변화가 있었는지, 그리고 새로운 사법제도의 도입 후 국민들의 인식에는 어떠한 변화가 있었는지, 나아가 양형위원회가 표명한 양형기준의 목표는 얼마나 달성되고 있는지 등을 객관적으로 분석하고 검토하는 것은 의미 있는 작업이라 여겨진다.그동안 양형에 대한 선행연구는 외국의 양형기준제도에 관한 소개, 양형기준에대한 법이론적 분석, 양형기준의 준수율 및 양형인자의 효과에 대한 실증분석으로구분할 수 있다. 이 연구는 선행연구의 연장선상에서 양형기준에 대한 법이론적 검토와 판결문자료, 설문조사 등을 이용한 실증분석을 통해 우리나라 양형기준의 체계,양형기준의 운용, 양형기준의 적용에 있어 문제점을 도출하고, 현행 양형기준제도의개선방안과 정책대안을 제시하는데 그 목적이 있다.