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.
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.
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.
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.
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 >
- ¨ç Imprisonment Recommended
- (1) Case 1 Attempt to Murder
Á¦1»ç·Ê
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
Á¦2»ç·Ê
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.
- ¨è Suspension of Sentence Recommended
- (1) Case 1 Attempt to Murder
Á¦1»ç·Ê
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
Á¦1»ç·Ê
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.
- ¨é Suspension of Sentence or Imprisonment Possible
- Case 1 Attempt to Murder
Á¦1»ç·Ê
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
Á¦2»ç·Ê
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.