Misunderstanding of Korean Suspension of Criminal Sentences in Korea: Korean Criminal Law Suspended Sentences

There are many misconceptions concerning suspension of the execution of sentences in Korea. Today, Brendan Carr, an American attorney working for a medium-sized law firm, noted on his blog that in the first jury trial case, a 4-year sentence was suspended. It is impossible to suspend a 4-year sentence. This is an important issue to understand for those navigating and considering options in criminal cases in Korea. For additional articles on Korean Criminal Law, please see: IPG Legal’s Criminal Law Archive.

Criminal Act
Article 62 (Requisites for Suspension of Execution of Sentence)
(1) In cases where a sentence of imprisonment or imprisonment without prison labor for not more than three years is to be imposed and there are extenuating circumstances taking account of the provision of Article 51, the execution of the sentence may be suspended for a period of not less than one year but not more than five years . . .

For example, if a mandatory minimum sentence is 10 years and the judge applies his discretionary mitigation (1/2 of the minimum), the sentence is 5 years, and the execution of the sentence can’t be suspended. In general, for a completed crime, two mitigations are available; however, the second is nearly impossible to obtain. For an attempted crime, three mitigations are possible, but the final one is nearly impossible. Each mitigation is 1/2 half the mandatory minimum sentence. Thus, 60 months -30 months -15 months.

In general, when a sentence is three years or less, it is suspended if a defendant settles with the victim or if extenuating circumstances exist.

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About Sean Hayes
Sean Hayes is an international attorney and former law professor, and the first non-Korean attorney to work for the Korean court system. He regularly advises on Korean criminal procedure, constitutional law issues, and high-risk disputes involving foreign parties.

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