The Basic Features of the Korean Sentencing Guidelines 5/14/2018 The Basic Features of the Korean Sentencing Guidelines 2009. 7.

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

Sentencing Problems Leniency Unwarranted Disparity ’Jeon-kwan-ye-woo’ 59.2 % of the public 72.5 % of the specialist groups Unwarranted Disparity 73.9% of the public 63.3% of the specialist groups ’Jeon-kwan-ye-woo’ ‘Jeon-kwan ' = prior judges(prosecutors) ‘ye-woo’= giving special concession Public distrust

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

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

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

Main Features of the Guidelines Reduce the influence of criminal history factors Mainly descriptive sentencing range Analysis of about 43,000 cases Taking 70%- 80% sentencing range Adjustment in some crimes 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 2nd type 6 - 9 years 8 - 11 years 10 - 13 years 3rd type 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) Mitigating factors Aggravating factors Factors related to the offense characteristics ▪ Preventive act(but exceeding normal limit) ▪ Weak intention ▪ Strong provocation by the victim ▪ Premeditation ▪ Vulnerable victim ▪ Defiles the corpse ▪ Using cruel method ▪ In case victim is the ones own or ones spouse's line al ascendant to the offender ▪ Deaf-mutes ▪ Mental deficiency ▪ Voluntary surrender ▪ victim side petition for lesser punishment ▪ No regret(not including the denial of the conviction) ▪ Strong recidivism

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

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

General Dispositional Factors(murder) related to recidivism 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 Strong ties with the community Voluntary confession Sincere regret No serious crime records Old age Provocation by the victim(s) Others 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

Multiple Offender Rule Only Consider up to 3 offences 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 More efficient monitoring system Whether to use unified worksheets Whether to develop D.B. system in the commission Who should prepare the PSR? Probation officer (assigned to Ministry of Justice) Court officer Prosecution service Alleviating the judiciary dominating atmosphere

◆ Prosecutorial Guidelines System(sample screen)

Guidelines Worksheet sample

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