Suspended Sentence (Probation): Requirements, Effects, Criminal Record, Invalidation, and Revocation

What Is a Suspended Sentence (Probation)?

A suspended sentence (probation) is a system in which the court imposes a sentence but delays its execution for a certain period; if that period passes without incident, the pronouncement of the sentence loses its effect and the sentence is not carried out.

It can be described as a system that opens a path for the defendant to return to society on their own without serving the sentence.

For example, if you receive a sentence of 1 year of imprisonment suspended for 2 years, then provided you commit no offense during the 2-year period, the 1-year prison term is extinguished.

Requirements for a Suspended Sentence

The requirements for a suspended sentence are as follows

When imposing a sentence of imprisonment or imprisonment without labor of 3 years or less, or a criminal fine of KRW 5 million or less
Grounds worthy of mitigating consideration
That the offense was not committed within the period running up to 3 years after a judgment imposing imprisonment without labor or a heavier sentence became final and its execution was completed or remitted

Sentencing Threshold for a Suspended Sentence

The sentencing threshold for a suspended sentence applies when imposing a sentence of imprisonment or imprisonment without labor of 3 years or less, or a criminal fine of KRW 5 million or less.

Here, the term "sentence" refers to the sentence actually pronounced, not the statutory penalty range.

Accordingly, loss of qualifications, suspension of qualifications, detention (up to 30 days), and a minor fine, among others, are not eligible for a suspended sentence

Grounds Worthy of Mitigating Consideration for a Suspended Sentence

The grounds worthy of mitigating consideration for a suspended sentence follow Article 51 of the Korean Criminal Act

Article 51 (Conditions of Sentencing) In determining the sentence, the following matters shall be taken into consideration.

The offender's age, character and conduct, intelligence, and environment
The offender's relationship to the victim
The motive, means, and result of the offense
The circumstances after the offense

Grounds for Disqualification from a Suspended Sentence and Deferred Sentencing

The ground for disqualification from a suspended sentence is an offense committed within the period running up to 3 years after a judgment imposing imprisonment without labor or a heavier sentence became final and its execution was completed or remitted.

In this regard, even if the person received deferred sentencing within those 3 years, deferred sentencing is a guilty judgment but involves no pronouncement of a sentence, so it does not constitute a ground for disqualification.

Therefore, even if a person received deferred sentencing within 3 years, and even while that deferral period is ongoing, a suspended sentence can still be pronounced.

Effects of a Suspended Sentence

The effects of a suspended sentence are as follows.

Where the suspension period passes after a suspended sentence has been pronounced, without that pronouncement being invalidated or revoked, the pronouncement of the sentence loses its effect.
Qualifications or rights that were suspended during the deferral period under other statutes may be revived (such as the right to run for public office).
Even after the suspension period passes, certain qualifications or rights may remain unobtainable for a set time (for example, one cannot be appointed as a national public official for 2 years after the suspension period ends).
The starting point of the suspension period is the date the suspended-sentence judgment becomes final, so where the judgment has not become final due to an appeal or final appeal, the suspension period does not begin to run.

Criminal Record and a Suspended Sentence

A criminal record from a suspended sentence does remain.

This is because a suspended sentence delays the execution of the sentence so that the pronouncement of the sentence loses its effect; it does not mean that no sentence was pronounced.

Suspended Sentence: Protective Observation, Community Service, and Order to Attend a Training Course

When pronouncing a suspended sentence, the court may attach protective observation, community service, or an order to attend a training course in order to promote the defendant's normal return to society and to prevent crime.

If you are placed under protective observation, community service, or an order to attend a training course along with a suspended sentence, you must report to the probation office within 10 days after the judgment becomes final and carry out the order under the guidance of the probation officer.

If you fail to carry out the order or violate the conditions, the suspended sentence may be revoked.

If it is difficult to perform a community service order because you are engaged in your livelihood, you may apply to the probation office and choose to perform it during the morning or afternoon on weekdays, or use only Saturday afternoons and holidays.

Invalidation and Revocation of a Suspended Sentence

A suspended sentence is invalidated in the following case.

Where, during the suspension period, you are sentenced to actual imprisonment without labor or a heavier sentence and that judgment becomes final

A suspended sentence is revoked in the following cases.

Where, after a suspended sentence has been pronounced, it is found that the requirements for the suspended sentence were not met

Where a person placed under protective observation, community service, or an order to attend a training course violates that order or the conditions, and the degree of the violation is serious (for example, where the defendant's whereabouts cannot be ascertained because they failed to report to the probation office, or where they did not perform the community service or training course order at all)

When a Suspended Sentence Is Invalidated

When a suspended sentence is invalidated, you serve not only the newly imposed sentence but also the previously suspended sentence together.

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