Type Of Offenses and Sentencing Periods

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Necessity of the Classification

 This Guideline divides the different type of offenses within certain offense group according to the specified principles. Within the same type of offense, the suggested sentencing ranges are contained in the sentencing guidelines. Under this approach, determining the proper category of offense becomes particularly relevant.

 The classification of this Guideline allows offenses similar in nature to be treated in the same way and non-similar offenses differently. Classifications contained in the Guidelines are necessary to assure predictability and to guarantee the recommending function of the sentencing guideline.

 Since the sentencing ranges may overlap, convictions for heavier offenses do not necessarily imply heavier sentences. Despite this, the classifications set forth in this guideline will assure providing the court with sentences recommended for offenses according to the severity of the crime.

Principle Applied to the Classifications

 The sentencing guideline is based on categorizing the Offense Type that aids the determining of the sentencing range rather than tailoring a guideline system that would take into account the elements of crime or sentencing factors for each case.

 The substantive law constitutes as a reference for deciding elements of crime. In turn, this would imply the guideline to take into account the elements of crime for substantive law. However, considering the purpose of this guideline, which is to contain narrowed sentencing ranges based on specific sentencing factors, the classifications are not bound according to each elements of the crime.

 For example, the various motives and means in the commission of murder cases provides a wide range of sentencing periods, including liability for cases with relatively low penalty to those with extremely severe punishment.

 In order to set forth the appropriate sentencing range, the murder cases should be classified into several offense types by following consistent criteria. The guidelines, in terms of motive, classify murder into Type 1 Murder with Extenuating Motive, Type 2 Murder Committed with General Motive, Type 3 Murder with Condemnable Motive, Type 4 Murder in Combination with Other Serious Crimes, and Type 5 Murder Committed with Extreme Neglecting for Human Life.

 The sentencing guideline’s approach to Offense of Sexual Assault Group is quite different from the Offense of Murder Group. The guideline classifies types in sexual assault with similarity of action or closeness of sentencing ranges.

 The reason for this difference can be found in Korea’s approach to criminal law in the substantive law context.

 Korean law does not distinguish murder into different types despite the various offenses possible rather it divides sexual assault into various types according to conduct, victims, methods used in the commission of offense, and whether other crimes were committed in combination of the murder. For the offense of sexual assault, the Guideline is organized by similar offense types with sentencing range of imprisonment more than 3, 5, 7, 10 years, and others.

Criteria of the Classification

 For various Groups of Offense throughout the Guideline, there is no general applicable principle or criteria for classification. Each offense group contains different criteria to divide the types of offense. Murder Group uses motive and purpose of offense; Bribery Group uses the amount of bribe; Sexual Assault Group focuses on the means of offense, age of victim and combined crimes; Robbery Group uses the means of offense, combined crimes, criminal records, and recidivism; Embezzlement and Breach of Trust Group focuses on the amount of money gained by offense; Perjury Group uses the purpose of offense; False Accusation Group applies the conduct of offense to classify the offense types; Abduction and Inducement Group focuses on the combined crimes; Fraud Group uses the amount of money gained by offense; Larceny Group applies character of stolen material, criminal records, and recidivism for classification Crimes on Official and Private Document Group seeks classification based on the right to produce the document; Crimes on Obstruction of Official Duty Group focuses on the object of crime and contents of combined offense; Crimes on Food and Health Group uses the object of crime and behavior type; and Crimes on Drug Group applies the type of drug involved and the particular price of the drugs involved in the offense. In order to increase usefulness of the guideline system, offenses deserving similar sentence or offenses similar in nature are identified as within the same offense type. To this end, various criteria were utilized to reflect different characteristics of each offense group.

 The sentencing guidelines classify different offense types with sentencing factors that are considered most important in the process of sentencing. Special constituent element can be considered as aggravating or mitigating factor in the sentencing process, but cannot always be applied as criteria in classifying the offense types. Even if it is an important sentencing factor, special constituent element cannot be regarded as a consistent factor applicable to all the criteria this is because, in some cases, a more important sentencing factor may exist in deciding a certain criteria.

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