While Monetary Penalty System has many positive functions and is widely used as an effective punishment to overcome the harmful consequences of short-term imprisonment, such as learning of criminal behavior and labeling, it has been criticized repeatedly, mostly because of its unfairness for not considering the economic inequality of offenders, and ineffectiveness to prevent recidivism. The problems have led many to question the effectiveness and justification of fines as a criminal penalty. In order to ensure equality in punishment through correct and fair sentencing, it is time to seek a new sentencing guideline based on accurate investigation and determination on sentencing factors. Since it is not easy to discuss the introduction of sentencing guidelines for fines as it is still challenging to gather or access to proper reference materials and sources, it would be meaningful to examine sentencing factors for individual offences.

This study focuses on the introduction of sentencing guidelines for fines in order to solve sentencing inequality and to secure fairness in punishment. The current sentencing guidelines apply for some of the individual offences. They are not a unified singular criteria, but rather a collection of multiple standards for each type of criminal offences. Moreover, the implementation has been expanded as subject offences have been added to the system ever since the first version of the guidelines was made. In this aspect, they are similar to British sentencing guidelines. The current sentencing guideline system recommends to set a certain range of punishment based on the investigation of sentencing conditions. The system is found to be effective on some part.

The issue of introducing sentencing guidelines for fines was, in fact, discussed at the time when the sentencing guidelines were adopted, but without reaching a conclusion it was deferred to a further discussion depending on the implementation of the system and assessment of the results. It appears that now is the time to consider the issue fully, and in depth. The essential objective of this study is to suggest base policy materials to introduce sentencing guidelines for fines based on both the comparative legal study on the system and the examination of sentencing state of individual offences. The scope of examination includes comparative legal study, sentencing state study on election crimes and crimes under the Occupational Safety and Health Act, and factors to be considered for establishing sentencing guidelines.

In the perspective of comparative legal study, the U.S. adopts general and comprehensive guidelines based on two factors, seriousness of crime and criminal records, instead of having sentencing guidelines to determine punishment between imprisonment and fines. In accordance with the guidelines, the sentencing guidelines for fines set a base offence for each criminal violation and then add extra points in consideration of the level of dangerousness, seriousness of the results, and other factors. In the sentencing guidelines for fines, offender's criminal history is considered not at the stage of deciding the level of violation, but at the later stage of adjustment or review of sentencing criteria deviation. For property crimes, damage amount is the first factor under consideration and then added are victim-related elements, degree of participation in crime, cooperation to the judiciary, multiplicity of crime, and acknowledgement of committing crime, etc,. at the adjustment stage. The US Federal Sentencing Guidelines are only advisory recommendation.

Compensation for criminal victims is an important factor in the sentencing guidelines. For corporate crimes, the guidelines apply differential fines between individuals and corporations, and advise in certain cases heavier fines to corporate crimes in consideration of the actor-element. In corporate crimes as well, the sentencing is based on the seriousness of crime, proceeds and damage amount of crime. Although sentencing guidelines for offences under the Occupational Safety and Health Act are not ready, it is widely accepted that a violation of the Act causing the death of a person is charged with first-degree murder, and if a gross-negligence is accepted for the death the violation scores are determined at about one-third of those of murder crime.

The most important criteria in British sentencing guidelines for fines is the seriousness of the crime, which is determined by the possibility of blame and the result of crime, that is, the degree of harm. According to Article 3 of the Sentencing Act, the seriousness of crime consists of (a) culpability of the offender oneself in the act of crime, and (b) harm and the harm includes harm (i) that is actually caused, (ii) is intended to cause, or (iii) is foreseeable. The seriousness assessment is the most important factor in applying the sentencing guidelines. It determines the base level of punishment, on which aggravation/mitigation factors are reflected additionally in accordance with the characteristics of individual crimes to reach a final sentencing. Assessing the aggravating/mitigating factors based on the seriousness of crime is the key point in the British sentencing guidelines.

The sentencing guidelines for crimes under the Occupational Safety and Health Act are divided into four categories of very high, high, medium and low, based on the seriousness of crime. On the other hand, the seriousness of crimes under the Corporate. Manslaughter and Corporate Homicide Act is assessed by two criteria, A or B. In this, aggravation factors for sentencing include criminal history of the offender, commitment of crime while on release, parole or probation (individuals), fulfillment of safety obligations, gains of criminal proceeds, intentional act, and good standing in public health safety records, etc. Mitigation factors include no previous criminal history, voluntary effort to resolve the problem, cooperation to investigation, good behavior (individuals), low culpability, and economic difficulties due to dependant family. Their aggravation and mitigation factors are very similar to those in Korean guidelines for the same crimes.

The sentencing guidelines for election crimes focus on the risk of invalidity of election in the situation where a candidate or the elected is sentenced to a fine not less than one million Won. Therefore, guidelines for election crimes committed by the citizens participating in the elections or campaign assistants, such as taking a photography of ballots, or obstructing, vandalizing or removing campaign articles including signs and placards.

As for election crimes, the criteria established customarily in the course of sentencing practice are considered in actual sentencing of fines, independently from the sentencing guidelines for fines.

In the range of recommendation by the Sentencing Council, there are only three categories of mitigation, basic, and aggravation factors, but where there are multiple factors to further the mitigation or aggravation consideration in sentencing the consideration factors are categorized into two parts, special mitigation and special aggravation and explained in the sentencing reasons by the courts,526) Nevertheless, in regards to election crimes that are frequently committed but no sentencing guidelines are prepared for, such as photographing ballots (Article 256, Para. 3 Subpara. 2, and Article 166.2 Para. 1), it appears that the general sentencing practice is to give a monetary penalty of around five hundred-thousand won.

Corporate crimes under the Occupational Safety and Health Act are treated differently than the crimes committed by natural persons. The punishment can be monetary in accordance with the sentencing rules, in which case the amount should be the same as the amount imposed on natural persons. The analysis of court decisions finds that in many cases, sentencing is made without consideration of the sentencing guidelines. It is probably because prison sentences have been very rare, while probation or fines are frequent to natural person-defendants, such as owners or legal representatives of business. In other words, enforcement of sentencing guidelines has not significantly affect the practice of soft punishment, in reality.

The mitigation factors that affect the amount of fines most positively include settlement with the victims or the bereaved, followed by sincere repentance, no previous criminal record, victims intention not to prosecute or punish, and reinforcement of safety management, in this order. The negative aggravation factors include repeated crime within five years, commitment on probation of a crime punishable by imprisonment or imposition of fines at least three times (including probation).

The findings from the examination of sentencing practice still question the effectiveness of the current sentencing rules, especially monetary penalty for corporations. The fact that the sentencing rules prescribe the same upper limit amount of fines for both corporations and natural persons raises the necessity to establish a separate responsibility of corporations, It also suggests that raising up the upper limit of fines is not likely to have a meaningful effect without improving the sentencing practices in reality.