PURPOSE OF THIS STUDY

With the establishment of the Presidential Committee on Judicial Reform in 1999 in Korea, the issue to introduce sentencing guidelines was raised amid discussions over 6 major judicial reform subjects. The Presidential Committee on Judicial Reform established the Sentencing Commission in accordance with\ the Court Organization Act which provides legal grounds for establishment of the Sentencing Commission and the Supreme Court Regulations No.2437 specifies its organization, operations, composition of its members and so on. After a series of discussions, the Presidential Commission on Judicial Reform first came up with draft sentencing guidelines on crimes of homicide, sexual assault and bribery in 2008, and on robbery, embezzlement and breach of trust, perjury, and false accusation in 2009.
With the sentencing guidelines on the aforementioned 7 types of crimes put in place from July 2009, Korea has implemented sentencing guidelines in earnest. The Sentencing Commission affiliated with the Supreme Court said that the objective of the sentencing guidelines is to enhance fairness and objectiveness in sentencing, to ensure transparency and rationalization in criminal judi416 cature, to contribute to making sentencing works modernized and scientific, and by extension, to boost people’s confidence in the judicial system.
As stated above, some 6 years have passed since Korea started enforcing full-fledged sentencing guidelines system. Although 6 years is a short period of time to tell whether or not the sentencing guidelines system is successful but it would still be meaningful to objectively analyze what kind of changes have been brought about in actual sentencing works, the extent to which people’s awareness has changed, and the degree to which the objective of sentencing guidelines that the Sentencing Commission set has been achieved.
Preceding studies on sentencing so far are about introduction of the sentencing guidelines system in other countries, about analysis of legal theories on sentencing guidelines, about compliance rate of sentencing guidelines, and about empirical analysis on the effect of sentencing determinants. As an extension of preceding studies, this research aims at identifying problems in the system, operation and application of Korea’s sentencing guidelines, and at presenting ways to improve the current sentencing guidelines system and policy alternatives by reviewing legal theories on sentencing guidelines and by empirIcally analyzing written judgments and survey questionnaires.

METHODOLOGY

For uation of the sentencing guidelines system, this research used 2 analytic axes approach. The one axis is “legal theory approach-empirical approach” considering that the nature and characteristics of the sentencing guidelines system inevitably require inter-disciplinary review and analysis. The other one is “synchronic (or cross-sectional) perspective-diachronic (longitudinal) approach” taking into account a temporal dimension on the premise that preceding studies mainly focused on cross-sectional analysis from synAbstract chronic perspective.
Using the said analysis framework, this research was conducted from the perspective of legal theoretic-synchronic, legal theoretic-diachronic, empirical- synchronic, empirical-diachronic perspectives. Specifically, the characteristics of Korea’s sentencing guidelines system was compared with that of other countries and changes and revisions in Korea’s sentencing guidelines that have been carried out were reviewed. From the empirical perspective, beforeand- after comparisons were made with respect to the implementation of the sentencing guidelines system using written judgments and big data. Through a scenario-based survey, comparison was drawn between the awareness of laymen and judicial officers toward sentencing.

ANALYSIS AND UATION OF LEGAL APPROACH

Korea’s sentencing guidelines were established by compromising, negotiating and taking into account different opinions and positions. Although the Sentencing Commission did not entertain the idea of statistically quantifying sentencing factors, the Commission has drawn up the types of sentencing guidelines based on a new method to classify sentencing factors qualitatively. The types of sentencing guidelines are composed of 3 categories: type classification criteria; special sentencing determinants; and general sentencing determinants. Each offense type has standard, aggravated, and mitigated sentencing ranges. Sentence is calculated by comparing the number of special sentencing determinants in the standard sentencing range to move to aggravated and mitigated sentencing ranges. However, the problem is that it is hard to find the justifiable grounds for this sentencing guidelines structure from legal theories. In other words, the basic structure and type of sentencing guidelines in Korea can be said of an arbitrary invention to a certain degree.
In addition, the type classification criteria and sentencing factors omit a considerable portion of various principles of general previsions and particulars of the Criminal Act. For example, the most important elements of crimes that may determine the degree of criminal responsibility such as dolus determinatus, dolus eventualis, and negligence are not effectively taken into account in the subjective sentencing factors that are reflected in sentencing guidelines. Further, the classification and analysis of various factors placed on individual sentencing guidelines show problems of sentencing guidelines (factors of: motive of a crime, means and method of a crime, actor of a crime, significance of bodily injury and injury to life, the amount of proceeds gained by a crime, properties harmed by a crime, the victim of a crime, criminal records and recidivism, and actor of a crime).
Setting aside discussions over irrationality in the types of sentencing guidelines, it is still meaningful to talk about the force of sentencing guidelines. All sentencing guidelines of the world have turned into a form of recommendation. The U.S and the U.K make continued efforts to reconcile compliance of and deviation from sentencing guidelines. Korea’s sentencing guidelines are also a recommendation in nature. Ironically, the Supreme Court and the Sentencing Commission, both refusing to give legal force to sentencing guidelines, stress the compliance rate of sentencing guidelines. However, whether or not deviation in sentence occurs cannot be judged by the compliance rate of sentencing guidelines only, which heavily emphasizes formality. Analysis of deviation in sentencing period can have its significance only when it is conducted based on categories like gender, race, social class, etc.
With the sentencing guidelines of countries all over the world taking on a form of recommendation, there is a need to notice those of the state of Missouri, U.S and Australia. Their sentencing guidelines are operated in a way that keeps renewing statistics of actual sentencing works. Instead of providing judges with general and abstract guidelines, the sentencing commissions of Missouri and Australia offer information reflecting and taking into account the constantly changing reality and necessity of actual sentencing works. Such sentencing commissions try to give as much sentencing-related information as possible over the course of each stage of criminal procedure. In other words, sentencing guidelines are not merely a reference for judges but serve as a kind of that any and all participants in criminal proceedings can make use of.
Under Korean sentencing guidelines, the rights of the accused need to be considered as well. Basically, Korea’s sentencing guidelines are operated in a way that they have a retroactive effect. Most of the revised sentencing guidelines have witnessed sentence upwardly adjusted. The sentencing guidelines applied retroactively risk compromising fundamental principles in legal stability. If the accused is given a right to request a hearing on sentencing factors of the sentencing guidelines, separation of sentencing hearing procedures can naturally be effected. Giving the accused a right to a sentencing hearing may lead to putting more burdens on the court and the prosecutors but such an attempt may have basic principles of modern liberal criminal law making their way into Korea’s sentencing guidelines.

ANALYSIS AND UATION OF POSITIVE APPROACH

Written Judgment Analysis

First, in the case of sex offense, sentence appears to have increased with statistical significance before and after the implementation of the sentencing guidelines system. Since this is only the result of comparison between the 2 periods of 2003-2004 and 2013-2014, before and after the introduction of sentencing guidelines system respectively, the exact time when sentence of sex crimes changed cannot be identified. However, because of the abolition of the provisions for crimes subject to victim’s complaint in 2013, prosecution of a case was, on many occasions, dismissed through agreement between the parties before the implementation of sentencing guidelines system. Since after the sentencing guidelines system was put in place, sex offense cases were prosecuted, it is likely that the increase in sex crime sentence is due to revision of related laws. In the case of suspension of sentence, conversely, the rate turned out to have decreased at a degree that is statistically significant since the implementation of sentencing guidelines system. Prosecution of those sex crimes that would have been dismissed or withdrawn through agreement with victims is initiated after the implementation of the sentencing guidelines system and the abolition of the provisions for offenses subject to complaints. As a result, the sentencing factor of victim not wanting the accused to be punished affected the decrease in suspension of sentence of sex crimes.
The findings of decision tree analysis of sex crime sentencing determinants show that offense committed by causing diminished physical or mental capacity to the victim was considered an important sentencing factor before the implementation of sentencing guidelines system but the intent of the victim is taken into account more importantly after the implementation of sentencing guidelines system. In addition, it is interesting to notice that before the sentencing guidelines system was in place, characteristics of a certain court such as inclusion of a female judge affected penalty but this disappeared after the sentencing guidelines system.
Second, in the case of crimes of robbery, penalty has increased in a statistically significant fashion in a before-and-after comparison of the sentencing guidelines system. It seems that in the determination of sentence suspension of crimes of robbery, the influence of the sentencing guidelines system is extremely limited. The subjective sentencing factor of offender expressing serious remorse was found out to be the primary consideration factor, regardless of the implementation of the sentencing guidelines system.
Third, penalty for crimes of embezzlement and breach of trust, unlike crimes of sexual assault and robbery, has decreased by a small margin after the implementation of the sentencing guidelines system. Specifically, sentence for type 1 with less than 100million won in gains has decreased in a statistically significant manner. In the case of those with gains more than 100million won, the penalty remained unchanged. This shows that changes in sentencing are not significant in the case of crimes of embezzlement and breach of trust after the implementation of the sentencing guidelines system. Likewise, changes in suspension of sentence for crimes of embezzlement and breach of trust are not by a large margin. Consideration factors such as substantial portion of damages reversed and the victim opposing punishment are the same, it turned out.
Unlike others, crimes of embezzlement and breach of trust was the target of criticism because of generous and unfair sentencing. This phenomenon has not changed that much after the introduction of the sentencing guidelines system, or worse yet in the case of such crimes with small amount of gains, the average penalty has been reduced. Since this research did not analyze each and every written judgment, the conclusion maybe hasty but it seems that crimes of embezzlement and breach of trust involving less than 100million won in gains are classified as a relatively minor offense, and the sentencing practices before the implementation of the sentencing guidelines system are stilled followed.

Survey Results

First, only 10.9% answered that they knew the sentencing guidelines system well. Although the system was put in place for 6 years, the laymen’s awareness level of the sentencing guidelines system was low.
Second, the surveyed responded that a ruling is more swayed by socioeconomic stature of the accused, socio-political atmosphere, and the public’s opinion than the personal characteristics or background (gender, hometown, etc) of a judge know as extra-judicial factors that may affect the outcome of a judgment.
Third, many of the respondents were of an opinion that the sentencing guidelines system would enhance the consistency and predictability in a judicial decision, expressing their hope that objective sentencing guidelines would bring about a transparent and fair ruling.
Fourth, positive expectations and uation of the sentencing guidelines system tend to get higher as the respondents’ confidence in judicial agencies grows higher, as they considered the discretion of a judge was excessive, and as they perceived that a decision of the court was at the mercy of the public’s opinion.
The outcome of the analysis shows that there is a positive correlation between the sentencing guidelines system and confidence in judicial agencies. It is expected that the criticism of arbitrary sentencing decision on the part of a judge or a decision made by succumbing to external pressures will be subdued significantly if the sentencing guidelines system is successfully established and maintained.
This research analyzed the difference in sentencing awareness of laymen and judicial officers through a scenario similar to the reality such as rape targeting adolescents, sexual molestation of victims under 13, deaths of traffic accidents caused by drunk driving and came up with the findings below.
First, since settlement with a victim determines the actual sentence in the case of a rape of adolescents, both lay persons and judicial officers regarded agreement with victim very important. However, given 98.0% of judicial officers pronounced an actual imprisonment sentence if settlement with the victim was not reached, they put more stress on reaching agreement with the victim than average people did. Laymen and judicial officers appeared to have the same view for the offender depositing significant amounts of money after having had failed attempt to reach an agreement with the victim in a genuine effort to bring restoration for the inflicted harm.
Second, in the case of sexual molestation against victims under 13, both lay persons and judicial officers tended to give actual imprisonment sentence after considering sentencing factors such as the degree of molestation and the resulting damage, deposits of significant amounts, agreement with the victim reached, etc. However, compared with judicial officers’, lay people’s selection of actual sentence tended to increase in a linear form as sentencing factors are added.
Third, in the case of traffic accident deaths due to drunk driving, real imprisonment sentence tended to increase in accordance with agreement reached with the victim and deposits made when the fault of the victim (jay walking) is considered as the same determinant factor. However, in the case of the victim being more at fault (failure to keep eyes forward), the rate of the actual imprisonment sentence chosen gets lower than when the victim’s fault is taken into account. This downward trend is more pronounced in judicial officers than in lay people.

Big Data Analysis

First, the buzz about sentencing on the Internet or social media networks is usually created when headline-grabbing crimes are committed, rather than being created during normal times when such crimes are not committed.
Second, with respect to embezzlement and breach of trust crimes, sentencing factors such as “contribution to the national economy,” “jaebol,” “not guilty if rich, guilty if poor,” “suspended sentence (the so-called “3·5 formula” or 3-year imprisonment with 5-year suspended sentence),” “unfairness,” and “distrust” are mentioned on many occasions. Regarding violent crimes, there are many contents related to sentencing outcomes and emotional and sentimental reactions to the same such as “capital punishment,” “weak punishment,” “strengthening,” “rage,” “anger,” etc.
Third, in some cases of the before-and-after comparison of the implementation of the sentencing guidelines system, embezzlement and breach of trust crimes has turned from a negative keyword to a positive one. However, in the case of violent crimes, as the keyword regarding sentencing outcome become larger in number, there is a tendency where negative reactions such as complaints about and condemnation against criminals as well as the judiciary increase.
Fourth, with the sentencing guidelines system in place, keywords such as “the privileges for one's former post,” “industry practice,” “power” etc have been reduced and those such as “fairness,” “equality,” “trust,” etc tend to increase compared with the past. However, the fact that keywords like “poor,” “distrust,” “insubordination,” etc are on the increase as well means positive awareness level over fairness and equality has heightened indeed but negative awareness over the outcome of sentencing still exists. At the end of the day, there seems to be a need for more communication with the people for the judiciary to be trusted by the people and to develop rapport with the people.

POLICY IMPLICATION

Based on important analysis results, this research puts forwarded specific policy measures: first, ways to improve sentencing guidelines (rationalization of the sentencing guidelines and review of the effectiveness of the sentencing guidelines); second, ways to utilize sentencing information (establishment of a specialized center for disclosure of sentencing information and sentencing transparency and sentencing analysis, and convening of a periodic sentencing conference); third, ways to enhance communication with ordinary people, and ways to improve sentencing awareness (frame strategy, target audience strategy, communication styles strategy, and utilization of crime statistics).