The Korean Government introduced sentencing guideline system for the first time on July 1, 2009 to elevate reliability of the trial. Since then, the Government needed to investigate sentencing factors that could apply sentencing guideline, so that debates on sentencing investigation started. The court wanted to set up a new internal organization of sentencing investigation and to manage it independently because of not only problem of fairness when probation officer under the Ministry of Justice investigated sentencing but also poor cooperation between the judge and sentencing investigator. On the other hand, the Ministry of Justice wanted to recruit probation officers for sentencing investigation and to assure of continuity of the job because probation officers already evidenced their professional ability and fairness of collection of sentencing material and sentencing investigation had close relation with execution. In a word, investigation into sentencing factors is needed to overcome problems of quantitative, simplified and inhuman sentencing and to consider and perceive defendants carefully and to put real sentencing into practice. Nonetheless, each party has quite different ideas on the one who plays the role.
This study examined presentence investigation system, practice of sentencing guideline, foreign legislation and case study and public administration methodologies to find out a desirable sentencing investigator. In this study, presentence investigation system of probation officers under the Ministry of Justice was thought to investigate sentencing fairly and effectively and to put justice of judicial system into practice. The sentencing investigation of the court investigator that is effective has better be cancelled, and it needed to reform unreasonableness that probation officer discovered at presentence.
The findings were:
Firstly, the sentencing guideline has been originated from the people's disbelief upon the court's sentencing. The court's take over of sentencing investigation that can remedy harmful effects of so called sentencing power does not coincide with principle of checks and balance of the power of the government.
Secondly, inspection of probation officer may differ very much from that of court inspector from point of view of professionalism of the inspection. The probation officer who is qualified at recruitment has special and professional ability as well as investigation skills and intangible knowhow of probation organization.
Thirdly, costs and expenses shall be considered. Without additional recruitment, Probation officers could inspect presentence enough. However, probation officer under the Ministry of Justice is said to have difficulties at having independence of the job because of a prosecutor's control: So, the Ministry of Justice shall suggest political alternative to solve the problem as soon as possible. And, the communication problem between some of probation officers and the judge should be settled.