Suspension Of Sentencing

Home > Sentencing Guidelines > Sentencing Guidelines Manual Commentary > Suspension Of Sentencing

Principles for Assessing the Consideration Factors on Suspension of Sentence and Its Need

 The sentencing guidelines provide principle to take into account when considering suspension of sentence and to be applied when assessing the sentencing factors. This promotes the guidance’s function and ensures the predictability of sentences.

Outline of the Applicable Principles

The primary consideration factors have strong effects on the decision to suspend the sentence and are given greater weight than the general consideration factors.

 Furthermore, the advised guidelines on suspension of sentence were designed through evaluation of primary consideration factors, different from the Guidelines on the sentencing periods. In the suspension of sentence determinations, the sentencing judge selects either the suspension of sentence or the imprisonment.

 A closer look at this principle is illustrated as follows: Type 2 of the Murder Group’s sentencing period in the Guideline is divided into three sectors mitigated, standard, and aggravated with some overlapping sectors that regulates excessive use of any individual sentencing factor on the sentencing and assures reasonable sentencing.

집행유예 기준

 In the Guidelines on suspension of sentence, in order to ensure a reasonable sentencing, the issue of handling the overlap between the sectors could be raised.

집행유예 기준2

 The overlapping sectors, marked with ‘?’, can be treated as either a suspension of sentence or imprisonment. In that case, however, a certain consideration factor has the danger of posing excessive effect on the determination for suspension of sentence. This would result in biased and unreasonable sentencing without a comprehensive review of the consideration factors provided in the Guideline for sentencing periods. For these reasons, the Guideline takes the approach to resolve the issue as placing the power of discretion to the sentencing judge. The sentencing judge may choose to advise suspension of sentence or imprisonment for the overlapping sectors (marked with ‘?’) and to advise suspension of sentencing for those cases clearly reflecting the consideration factors.

집행유예 기준3

 As a result, the applicable principle is provided as follows: in cases where the affirmative primary consideration factors outnumber the adverse factors by 2 or more and when the general consideration factors are not contained with the overlapping sectors; then the suspension of sentence is recommended.

< Applicable Principles for Assessing the Consideration Factors on the Suspension of Sentence >

    • The primary consideration factors are given more gravity than the general
      1. ① Suspension of sentence is recommended when 2 or more affirmative primary consideration factors exist alone; or affirmative primary consideration factors outnumber the adverse consideration factors by 2 or more.
      2. ② Imprisonment is recommended when 2 or more adverse primary consideration factors exist alone; or adverse primary consideration factors outnumber affirmative consideration factors by 2 or more.
      3. ③ The sentencing judge decides suspension of sentence through comparing and assessing the consideration factors comprehensively for cases when the comparison of the number of affirmative and adverse general consideration factors shows more margin than that of affirmative and adverse primary factors (even if the cases fall within ①or ②); and for cases that does not fall within ①or ②.

Application of the Principles for Assessing the Consideration Factors

 Based on the consideration factors, the guideline on suspension of sentence is organized into three sectors: imprisonment, suspension of sentence, and discretionary.

 If the evaluation of the consideration factors does not recommend imprisonment or suspension of sentence, then the sentencing judge may select either to impose on the defendant. For the suspension of sentence, somewhat contrary to the sentencing period guide, the Guideline does not provide tables that contain the suggested results. The guideline, however, provides a table recommending one of the three sectors.

 The only consideration that affects the decision to impose suspension of sentence or imprisonment is the primary consideration factor. The Guideline suggests, suspension of sentence is recommended when 2 or more affirmative primary consideration factors exist alone; or affirmative primary consideration factors outnumber the adverse consideration factors by 2 or more. In addition, imprisonment is recommended when 2 or more adverse primary consideration factors exist alone; or adverse primary consideration factors outnumber affirmative consideration factors by 2 or more.

 There are only two cases when the sentencing judge may decide to impose suspension of sentence or imprisonment. When the affirmative and adverse primary consideration are equal in number or the margin between the two factors are 1, then the sentencing judge decides suspension of sentence through comparing and assessing the consideration factors comprehensively for cases.

 In addition, the sentencing judge decides suspension of sentence through comparing and assessing the consideration factors comprehensively when the affirmative primary consideration factor outnumbers the adverse primary consideration factor by 2 or more, or vice versa, and for cases when the margin of affirmative (adverse) and adverse (affirmative) general consideration factors outnumber the adverse (affirmative) and affirmative(adverse) primary consideration factors.

< Example on Determining Suspension of Sentence >

  1. ① Imprisonment Recommended
    • (1) Case 1 Attempt to Murder
      제1사례
      Classification Adverse Affirmative
      Primary Consideration Factor Premeditated crime, Serious
      Bodily Injury, No Reverse of
      Harm
      No criminal history
      General Consideration Factor Sincere Remorse
      • In this case, the adverse primary consideration factor outnumbers the affirmative factor by 2, and only one affirmative general consideration factor is present. Therefore, imprisonment is recommended under the Guideline.
    • (2) Case 2 Offense on Accepting Bribe
      제2사례
      Classification Adverse Affirmative
      Primary Consideration Factor Active Demand of Bribe;
      Engaging in Conduct in Return
      for the Bribe that Constitutes
      as an Illegal or Wrongful
      Performance of Duties
      General Consideration Factor Bribe Returned Before the
      Commencement of an
      Investigation
      • In this case, there are two adverse primary consideration factors present without any affirmative consideration factor, and only one affirmative general consideration factor exists. Therefore, imprisonment is recommended.
  2. ②  Suspension of Sentence Recommended
    • (1) Case 1 Attempt to Murder
      제1사례
      Classification Adverse Affirmative
      Primary Consideration Factor Premeditated crime The Crime’s Motive Can Be
      Taken Into Consideration in
      Particular;
      Minor Bodily Injury,
      Victim Opposes Punishment
      General Consideration Factor Lack of Social Ties Rescuing or Transferring the
      Victim to the Hospital After
      Committing the Offense
      • In this case, the affirmative primary consideration factor outnumbers the adverse primary consideration factor by 2, and equal number of general consideration factor is present. Therefore, suspension of sentence is recommended.
    • (2) Case 2 Offense Related to Acceptance of Bribes
      제1사례
      Classification Adverse Affirmative
      Primary Consideration Factor Expresses Penitence; Cases
      where the Amount of Bribe
      Involved is Less Than 10
      million won
      General Consideration Factor
      • In this case, two affirmative major consideration factors exist alone, and suspension of sentence is recommended.
  3. ③  Suspension of Sentence or Imprisonment Possible
    • Case 1 Attempt to Murder
      제1사례
      Classification Adverse Affirmative
      Primary Consideration Factor Serious Bodily Injury
      General Consideration Factor Expresses Sincere Remorse
      • In this case, one adverse major consideration factors exist; since this poses difficulty in recommending the suspension of sentence as a definite decision, the sentencing judge has the discretion to impose either a suspension of sentence or imprisonment.
    • (2) Case 2 Offense Related to Acceptance of Bribes
      제2사례
      Classification Adverse Affirmative
      Major Consideration Factor Active Demand Expresses Penitence; Cases
      where the Amount of Bribe
      Involved is Less Than 10
      million won
      General Consideration Factor Criminal History of the Same
      Offense and Prior Records of
      Disciplinary Actions on the
      Same Offense
      • Since positive major consideration factors outnumber negative factor only by 1, imprisonment is not necessarily advised and either imprisonment or suspension is possible.
      • In this case, the affirmative primary consideration factor outnumbers the adverse factor by a margin of only 1. Since this poses difficulty in recommending the suspension of sentence as a definite decision, the sentencing judge may impose either a suspension of sentence or imprisonment.

???? ???????