The Basic Features of the Korean Sentencing Guidelines

The Basic Features of the Korean Sentencing Guidelines 2009. 7.

Historical Backgrounds l 2003. 8. The Judicial Reform Committee(JRC) l 2004. 12. The Presidential Committee for Judicial Reform l 2006. 12. The Revision of the Court Organization Act l 2007. 5. The Establishment of the Korean Sentencing Commission l 2009. 7. 24. Resolution of the first sentencing guidelines ※ 7 crime categories(murder, robbery, sex offenses, embezzlement, bribery false accusation, perjury) l 2009. 7. 1. Enforcement of the first guidelines

Sentencing Problems l Leniency • 59. 2 % of the public • 72. 5 % of the specialist groups l Unwarranted Disparity • 73. 9% of the public • 63. 3% of the specialist groups l ’Jeon-kwan-ye-woo’ ‘Jeon-kwan ' = prior judges(prosecutors) • ‘ye-woo’= giving special concession • Public distrust •

The structure of the Commission l 13 commissioners • 1 chairperson • 4 judges • 2 public prosecutors • 2 professors • 2 defense attorneys • 2 experts ※ one standing commissioner l Special Advisors(3 teams) • Draft the guidelines & Study the Policies • composed of judges, prosecutors, defense lawyers, professors l General Secretariat • 3 divisions(Planning, Information Research, Statistics & Analysis

u The Organization of the Korean Sentencing Commission Chairperson Standing Commissioners (13) Special Advisors General Secretariat Planning & Administratio n Information Research Statistics & Analysis

Main Features of the Guidelines l First continental legal system based nation to adopt guidelines system(? ) l Adopting gradual approach & narrative model • Rejecting U. S. sentencing guidelines model l Advisory guidelines • In case of departure, written reasoning needed • Either prosecutor or defendant can appeal l Applied to adult criminals & cases in typical procedure

Main Features of the Guidelines l Reduce the influence of criminal history factors l Mainly descriptive sentencing range • Analysis of about 43, 000 cases • Taking 70%- 80% sentencing range • Adjustment in some crimes l Little interaction between the Commission and the National Assembly • Commission need to submit the annual report • No review or approval by the National Assembly

Application Process(4 steps) 1. Determination of crime category 2. Application of the sentencing range 3. Determination of the actual sentence 4. Determination of suspension of sentence

The Sentencing Guidelines Range(Murder) Mitigated range Basic Range Aggravated Range First type 3 – 5 years 4 - 6 years 5 - 7 years 2 nd type 6 - 9 years 8 - 11 years 10 - 13 years 3 rd type 8 - 11 years 10 - 13 years 12 - 15 years, life ※ In principle, 70 – 80 % of the actual sentencing range type is decided by the gravity of the motive(s)

The Special Sentencing Factors(Murder) Aggravating factors Mitigating factors Factors related to the offense characteristics Factors related to the offender characteristics ▪ Preventive act(but exceeding normal limit) ▪ Weak intention ▪ Strong provocation by the victim ▪ ▪ Deaf-mutes Mental deficiency Voluntary surrender victim side petition for lesser punishment ▪ ▪ ▪ Premeditation Vulnerable victim Defiles the corpse Using cruel method In case victim is the ones own or ones spouse's line al ascendant ▪ No regret(not including the denial of the conviction) ▪ Strong recidivism

General Sentencing Factors Mitigating factors Factors related ▪ Minor role To the offense ▪ Mediate provocation by the victim characteristics Factors related to the offender Aggravating factors ▪ Discard the victim's body ▪ considerable reparation ▪ Mental deficiency(by the ▪ Recidivism negligence of the criminal) ▪ Similar prior criminal ▪ Sincere regret conviction ▪ Victim side petition for lesser punishment ※ Special factors → decide the specific range General factors → decide the specific term within the range

Dispositional Factors(Murder) l Important Factors § Effort to stop accomplice from committing crime Factors related to recidivism § Planning § Special mitigating motive § Especially reproachable motive § Voluntary give up committing § Similar serious criminal record crimes (within 10 years) § Strong provocation by victims § No criminal record Other factor § Serious injury § No reparation § No or mild injury § Victim's petition for lesser punishment

l General Dispositional Factors(murder) Factors related to recidivism Others § 2 or more serious criminal record § Very weak ties with society § Drug or alcohol addiction § Possession of dangerous weapons § Cruel criminal act § No regret § No acquaintance with the victim § § § § Major role in crime § Destroy evidence or attempt to so § Minor role § Transport the victim(s) after committing crime § Worse health condition § Serious damage to the offende r's family from the detention of the offender Strong ties with the community Voluntary confession Sincere regret No serious crime records Old age Provocation by the victim(s)

Multiple Offender Rule l Only Consider up to 3 offences l Rules ; Raise the Ceiling of the Principal Offense ◆ Final Maximum Range The guidelines maximum range of the Principal Offense (+) ½ of the maximum range of the second serious crime (+) 1/3 of the maximum range of the third serious crime

Some unsettled issues l More efficient monitoring system • Whether to use unified worksheets • Whether to develop D. B. system in the commission l Who should prepare the PSR? • Probation officer (assigned to Ministry of Justice) • Court officer • Prosecution service l Alleviating the judiciary dominating atmosphere

◆ Prosecutorial Guidelines System(sample screen)

Guidelines Worksheet sample

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