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Crimes of Embezzlement and Breach of Trust

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Promulgated on April 24, 2009, Effective on July 1, 2009

GUIDELINE ON SUSPENSION OF SENTENCE
DEFINITIONS OF CONSIDERATION FACTORS FOR SUSPENSION OF SENTENCE
ASSESSING PRINCIPLES APPLICABLE TO THE CONSIDERATION FACTORS FOR SUSPENSION OF SENTENCE

Crimes of Embezzlement and Breach of Trust
Classification		Adverse	Affirmative
Primary Consideration Factor	Risk of Recidivism, etc.	Criminal History of the Same Offense (Imposing of Suspension of Sentence or More Severe Punishment Within Five Years; or More Than Three Incidents of Fines) Deliberate Concealment of Profits Gained from the Offense Particularly Malicious Commission of the Offense	Passive Participation Resulting From Outside Pressure Minor Violation of Duties Voluntary Surrender to Investigative Agencies or Cases of Whistle-Blowing of Corruption
Primary Consideration Factor	Other Factors	Absence of Agreement with the Victim Cases Where the Actual Damage is Substantial Inflicting Serious Damages to the Victim	Substantial Portion of Damages Reversed Under Single-ownership or a Family-owned Business Cases Where the Actual Damage is Slight Offender Expresses Remorse and the Victim Opposes Punishment
General Consideration Factor	Risk of Recidivism, etc.	Criminal History of the Same Offense, More Than Two Incidents of Suspension of Sentence or More Severe Punishment Repeated Crimes Condemnable Motives Lack of Social Ties Absence of Remorse	Offense Committed for Basic Living Expenses, Hospital Expenses and the Like Strongly-Established Social Ties Expresses Sincere Remorse No Criminal History of Suspension of Sentence or Imposing of Other Sentences More Severe Motive for Committing Offense Can be Taken into Consideration Cases of Old-age Offenders
General Consideration Factor	Other	Active Participation as an Accomplice Inflicting Multiple Victims Including Employees, Shareholders, or Creditors Promise or Acceptance of Benefit in Exchange for the Commission of the Offense Destroying Evidence or Attempting to Conceal Evidence After Commission of the Offense Offense Committed with Purpose to Reinforce Control or to Secure Position within the Company Absence of Efforts to Reverse Damages	Passive Participation As an Accomplice Cases Where the Offender Failed to Consume or Retain Most of the Profit from the Crime Significant Amount of Money Deposited, Portion of Damage Reversed, Genuine Efforts to Reverse Harm Offense Caused Relatively Small Actualized Damages Offense Committed for the Sole Benefit of the Company Cases of Physically-ill Offenders Cases where the Arrest of the Offender would Cause Severe Hardship to the Offender’s Dependent Family Member Major Shareholder of the Affected Company

In cases where the consideration factors for suspension of sentence of sentencing and the sentencing factors are identical, refer to the definitions set forth in the Definition of Sentencing Factors.
Determining Criminal History
- Prior criminal history is calculated as follows: In cases involving suspension of sentence, calculate from the date the defendant’s suspension of sentence was affirmed up to the date of the commission of the offense. In cases imposing imprisonment, calculate from the final date of the completion of the sentence up to the date of the commission of the offense.
Cases where the actual damage is substantial
- This means cases where the offense does not constitute as Inflicting Serious Harm to the Victim but the total damage unrecovered amounts to more than 300 million won.
- However, for suspension of sentence, this means cases where the total damage unrecovered amounts to more than 500 million won.
Cases where the actual damage is slight
- This means cases where the total damage unrecovered amounts to less than 20 million won.
- However, for imposing imprisonment, this means cases where the total damage unrecovered amounts to less than 50 million won.

For cases where the imposing penalty is imprisonment, in deciding whether the suspension of sentence is appropriate, the primary consideration factor should be taken into account with greater importance than the general consideration factors. This is further specified as follows:

① In cases where only two or more primary affirmative factors exist or when primary affirmative factors outnumber the major adverse factor by two or more, suspension of sentence is recommended.
② In cases where two or more primary adverse factors exist or when primary adverse factors outnumber the primary affirmative factor by two or more, imprisonment is recommended.
③ In cases other than ①, ②, or even if cases of ①, ②, if the difference between the number of general adverse(affirmative) factors and general affirmative (adverse) factors is greater than that of adverse and affirmative factors of the primary consideration, then the judge shall decide whether to suspend the sentencing after assessing and comprehensively taking into account the factors listed under the suspension of sentence section.