What Is Deferred Sentencing?
Deferred sentencing (선고유예) is a system under which, even though a case is found guilty, the court postpones imposing a sentence for a set period when the offense is minor and there are clear signs of remorse, and once that suspension period passes without incident, the case is treated as having been dismissed.
However, this does not apply to a person who has a prior criminal record carrying a sentence of suspension of qualifications or heavier.
Period of Deferred Sentencing
The period of deferred sentencing is set at 2 years under Article 60 of the Korean Criminal Act, and this period cannot be shortened.
Article 60 (Effect of Deferred Sentencing) When 2 years have elapsed from the date deferred sentencing was granted, the case shall be deemed dismissed.
Effect of Deferred Sentencing
As specified in Article 60 of the Korean Criminal Act, the effect of deferred sentencing is that once the period of deferred sentencing has passed, the case is deemed dismissed.
Here, a judgment of dismissal means terminating the proceedings without any direct ruling on the substance of the case. In other words, being deemed dismissed means that the proceedings concluded without any sentence being imposed.
Requirements for Deferred Sentencing
The requirements for deferred sentencing are as follows:
- The sentence must be imprisonment or imprisonment without labor for up to 1 year, suspension of qualifications, or a criminal fine
- There must be clear signs of remorse
- The defendant must have no prior criminal record carrying a sentence of suspension of qualifications or heavier
Eligibility for Deferred Sentencing
Eligibility for deferred sentencing applies to sentences of imprisonment or imprisonment without labor for up to 1 year, suspension of qualifications, or a criminal fine.
Accordingly, deferred sentencing is not possible for a sentence of detention (up to 30 days).
Where the principal sentence is subject to deferred sentencing, confiscation and collection of equivalent value may also be deferred.
Where sentences are imposed concurrently, deferred sentencing is possible for only part of them. In other words, where a criminal fine and a term of imprisonment are imposed concurrently, deferred sentencing is possible for one of the two or for all of them.
When There Are Clear Signs of Remorse for Deferred Sentencing
"Clear signs of remorse" for deferred sentencing means a case in which, taking into account the degree of contrition together with a comprehensive consideration of the sentencing factors set out in Article 51 of the Korean Criminal Act, it is strongly expected that the defendant will not commit a crime again even if no sentence is imposed.
Article 51 of the Korean Criminal Act reads as follows.
Article 51 (Sentencing Factors) In determining a sentence, the following matters shall be taken into account.
1. The age, character and conduct, intelligence, and environment of the offender
2. The offender's relationship with the victim
3. The motive, means, and result of the offense
4. The circumstances after the offense
Grounds for Disqualification from Deferred Sentencing
The grounds for disqualification from deferred sentencing arise where the defendant has a prior criminal record carrying a sentence of suspension of qualifications or heavier.
Here, having a prior criminal record carrying a sentence of suspension of qualifications or heavier refers to one's criminal history, and whether the effect of that sentence has lapsed is irrelevant.
Therefore, even where the sentence has lapsed under Article 7 of the Act on the Lapse of Criminal Sentences, or where the defendant has previously received a suspended sentence (probation), this still constitutes a ground for disqualification from deferred sentencing.
Probation Supervision Under Deferred Sentencing
Probation supervision under deferred sentencing may be ordered where a disposition of deferred sentencing has been issued.
The period of probation supervision under deferred sentencing is 1 year, and unlike a suspended sentence (probation), no community service order or order to attend a training course may be imposed.
Revocation of Deferred Sentencing
Revocation of deferred sentencing is carried out by imposing the deferred sentence when, during the suspension period, a judgment imposing a sentence of suspension of qualifications or heavier becomes final, or a prior criminal record carrying a sentence of suspension of qualifications or heavier is discovered.
Alternatively, if the defendant violates the conditions of compliance during the probation supervision period and the violation is serious, the deferred sentencing may be revoked.
