1. Background
○ The legislative motive and intent of property-based fine system is
acknowledged in that it can help people without capability to pay a fine
avoid detention in a workhouse, which commonly happens under the
current system that imposes the same amount of fine to the same crime,
as discussed earlier, and also in that the equalization of the impact of
penalty on the rich and the poor is likely to be promoted as the court
would impose fine by converting a day’s worth of a wrongdoer into monetary
value in consideration of the income and property of the wrongdoer.
The purpose of property-based fine system is to rectify the inequality of
the impact of penalty and to prevent ineffective detention in a workhouse.
The advantage of this is to promote the equalization of pain by considering
defendant's capability to pay, while maintaining the idea of liability for
one's own action.
From the comparative law perspective, that day-fine system has been
adopted widely in Europe as a basic punishment has a significant
implication for us to establish the system and the policy direction in the
future.

2. Issues surrounding the introduction of property-based fine
system
○ Violation/Non-violation of the principle of criminal liability
One of the main reasons that the members of the 18th to 20th National
Assembly opposed the relevant laws concerning the system is that the
system might violate the principle of criminal liability as the degree of
penalty for the same crime varies because of the economic status of the
defendant.
 Criminal liability is a legal principle that prohibits punishment
not-premised on the liability or punishment exceeding the liability. It
should not be understood as prohibition of deciding the penalty within
the limit of liability, or as sentencing an objectively same penalty to the
same liability case, but as an effort to make the pain of punishment felt
subjectively by each wrongdoer the same.
 Penalty-based fine system considers the wrongdoer’s subjective pain of
punishment and thus should not be deemed as violating the principle of
criminal liability. Given that the Article 51 of the Criminal Act prescribes
the economic ability of the defendant shall be considered in sentencing,
the opposing view that deciding the amount of fine based on the
defendant’s economic ability is problematic is not logical.
 In order for property-based fine system not to violate the principle of
criminal liability as imposing monetary penalty depending on the
individual wrongdoer’s economic ability, it should be premised on a rather
specific information of the wrongdoer’s income and property.
 In a survey with ordinary citizens, a 56.1% of the total respondents
answered that the information of people’s income could be fully obtained
through the current system.

○ Argument of prematurity of introducing the system
 The opposing views argue that introducing property-based fine system is
premature because, first, there is not enough information ready for the
court to understand the income and property status of people since a
rather specific and accurate material concerning one's economic ability
is not yet available in the current system, or a desirable system to
comprehend people's property, etc. is yet to be built, and secondly,
day-fine system will be seriously detrimental to most of salaried workers
since it would be as if a tax, etc.
 In a survey with ordinary citizens, a 72.6% of the total respondents
answered that the current system was sufficient to comprehend the status
of people's income and property, which could be a driving force to
introduce property-based fine system.
 According to a survey with the experts of the relevant area, the majority
opinion was that the current infrastructure is not incapable of supporting
property-based system is because there has been a series of effort to
improve various economic legal systems to comprehend the defendants’
property size, to realize transparency in the criteria for tax imposition,
and to computerize income materials of the citizens, etc.
 Considering the ordinary people’s views and the specialists’ assessment,
it appears that ensuring the stability of the court’s investigation work, or
building a cooperative work arrangement with relevant administrative
agencies, such as financial institutions, the National Tax Service, and the
National Health Insurance Service, etc. is more important than focusing
on the reason of impossibility to comprehend the size of property, etc.

○ Solving the difficulty in investigating people’s income and property status
 In fact, it is not easy to investigate the personal economic situation of
a defendant, which is the core in calculation of day-fine. It is also
challenging to access the taxation data of the wrongdoer just to calculate
the amount of fine under day-fine system as in Germany. Therefore, it
is, in reality, necessary to prepare a method to compute the income status
of the defendant.
 The challenge is that due to the low credibility on the prosecution and
the courts among the general public, computing a defendant’s property
status is not likely to convince the people and fair sentencing issue could
be raised, as well.
 The administrative institutions, by establishing the duty of information
disclosure in case of determination of the amount of fine in sentencing
(refer to Article 34, Paragraph3 of the Criminal Act of Switzerland), should
support the investigative agency or the court to access the necessary
income information of wrongdoer and thus to prepare the foundation to
argue the economic situation of the person.

3. Detailed Issues of the Legislation
○ Number of days
 According to the legislation relevant to day-fine system, the suggested
number of days ranges from 180 days upto 3 years. Cho Seung Su, a
member of the 18th National Assembly, proposed that the maximum
number of day-fine should be one year as it can prevent a harmful effect
of short-term imprisonment.445) After that, the proposals submitted by Yu
Seong Yeop, Kim Ki Jun, and Lee Sang Min, members of the 19th National
Assembly, defined the proper maximum number of days as one year (360
~ 365 days). On the other hand, MPs Park Wan Ju and Cho Jae Sung
proposed three years as the maximum.
 With respect to the limit of the number of days in day-fine system, this
study would suggest three years as the maximum period, considering the
result of comparative legal study, the opinion of Legislation and Judiciary
Committee of the National Assembly, the purpose of monetary penalty
under the current criminal laws, and the time period of detention in a
workhouse.
○ Amount of day-fine
 According to the bills proposed previously, day-fine amounts ranged from
10,000 Won at the minimum to 50,000,000 Won at the maximum. As per
the question of whether there should be a cap to the amount of day-fine
limit, some European countries, such as Finland and Denmark, do not
set the upper limit of day-fine amount as they are more focused on making
sure that the richer the wrongdoer, the greater amount of penalty be
sentenced and thus a differential approach be materialized. However, the
current study considers it as if there was no limit set in statutory
punishment, while setting statutory punishment is the least control over
the court's discretion in sentencing, and therefore recommends to set a
cap in the amount of day-fine as 10,000,000 Won. On the other hand,
this study would not suggest to set the lower limit of day-fine amount,
because it is necessary to prevent the sentence of short-term
imprisonment, which is the harmful effect of detention-in-a-workhouse
of minor defaulters who are incapable of paying small sum penalty.
 The basis of calculating the amount of day-fine includes income and
property of a person. This study suggests to consider the defendant's own
average income and property, plus the existence of any dependant family,
but without other family member's property and income as such has
nothing to do with the offense committed by the wrongdoer-which was
the majority opinion of the surveys both with general public and the
experts in this area.
 This study also suggests that the criteria to calculating the amount of
day-fine be set as a Supreme Court’s rule, in order to prepare a method
to standardize the monetary penalty sentencing.

○ Preparation of basis to comprehend the status of defendant's income and
property
 In the 19th National Assembly, the legal basis to check defendants'
personal information and materials necessary for the court to comprehend
their economic situation, such as taxation status, payment of social
insurances, including the National Health Insurance, etc. was prepared
as an effort to review the legislation. Again, the key question is whether
such basis can allow the court to comprehend the status of the defendants'
property status, accurately. If it is impossible, at least securing the
materials useful to calculate the income and property of people is
important because, in the end, what matters would be the issue of
sentencing that determines the amount of fine flexibly based on a full
consideration of defendants' economic status.
 The subject of investigation as the criteria for calculating fine includes
defendants’ income and property, residential relationship and duty of
supporting one’s family, types and amount of taxation, etc. First, to
comprehend the income and property of a wrongdoer through questions
is the most basic measure to calculate the amount of fine. For example,
assessing people’s economic situation is generally and roughly possible
once they submit, voluntarily, relevant s (paystub, individual
income tax statement, and health insurance s, etc.). However,
whether the system can force a wrongdoer to submit the income and
property information of his/her own is another issue, and introducing
property declaration system does not appear to be proper as it concerns
Abstract 295
the defendants’ right to remain silence, according to the interview survey
of the current study.

○ Further task
 The motive and intent of property-based fine system is widely acknowledge
in that it aims to prohibit ineffective disposition of detention in a
workhouse while correcting inequality of penalty impact, and has
advantages such as maintaining the idea of criminal liability and promoting
equalization of pain by considering defendant’s capability to pay.
 On December 17, 2020, immediately after the submission of this report,
MP. So Byung Chul introduced a bill entitled "Partial amendment bill for
the Criminal Act" (Bill No. 2106693) about introducing property-based fine
system. In addition, several venues, such as policy seminar and workshop,
have been made so that people could discuss the justification of the system
and the viable method to realize the system, based on which the legislature
may develop the social consensus and acquire the driving force to amend
the law.
 This study has found that the general public and experts in this area are
keen to reform the current monetary penalty system, and hopes to reach
a national agreement through the social consensus on the issue, despite
different opinion in the details, such as the number of days to be
sentenced, and the amount of day-fine, etc.