ENGLISH
Victim and Assailant Involved with Violence and Injury
Conditions of Determination of Punishment
The following matters are considered when determining a punishment (Article 51 of the Criminal Act).- The criminal’s age, personality, conduct, intelligence, and affiliated environment
- The criminal’s relationship with the injured party
- Crime motivation, method, and result
- Circumstances after committing the crime
Aggravation of Penalties Cumulative Offense- “Repeatedcrime” refers to a person who has been punished with imprisonment without laboror more severe punishment within three years after the date when the executionhas been completed or remitted (Article 35(1) of the Criminal Act).
- Cumulative offense requires the criminal to serve up to twice the long-term sentence determined under the Criminal Act (Article 35, paragraph 2 of the Criminal Act).
※ If the criminal is revealed to have committed a cumulative offense after the judgment is sentenced, the penalty may be redetermined after summing up the period of the previous sentence. However, the sentence shall not be redetermined if the declared sentence has been executed or exempted (Article 36 of the Criminal Act).
Aggravation of Penalties for Special Aid and Abet- Suppose a person aids or abets another person to commit a crime by command or supervision. If a person abets another person, he/she shall be penalized with a long-term sentence or a huge fine along with an additional 1/2 of the sentence or fine. If a person aids another person, he/she shall be penalized for the criminal act (Article 34, paragraph 2 of the Criminal Act).
※ Definitions of Legal Terms
· Abet: A person luring another person who had no intention of committing a crime to be willing to do so.
· Aid: A person helping another person by taking part in a criminal act.
< Source: Collection of Legal Terms and Cases, By the Ministry of Government Legislation and Korea Legislation Research Institute, 2003>
Aggravation of Penalties for Habitual Crimes of Violence or Injury- If a person habitually conducts any crime mentioned below, he/she will be penalized an additional 1/2 of the related sentence (Article 264 of the Criminal Act).
· Crime of injury (Article 257, paragraph 1 of the Criminal Act)
· Crime of injury to lineal ascendants (Article 257, paragraph 2 of the Criminal Act)
· Crime of grievous bodily injury (Article 258, paragraphs 1 and 2 of the Criminal Act)
· Crime of grievous bodily injury to lineal ascendants (Article 258, paragraph 3 of the Criminal Act)
· Crime of special injury (Article 258-2 of the Criminal Act)
· Crime of violence or assault (Article 260, paragraph 1 of the Criminal Act)
· Crime of lineal ascendant violence (Article 260, paragraph 2 of the Criminal Act)
· Crime of special violence (Article 261 of the Criminal Act)
Aggravation of Penalties for Multiple Offenses- “Multiple offenses” refers to a criminal committing multiple crimes with undecided judgments or multiple crimes before committing a crime with a finalized judgment (Collection of Legal Terms and Cases, By the Ministry of Government Legislation and Korea Legislation Research Institute, 2003).
- Forconcurrent crimes, in the event the punishments specified for each crime are ofthe same kind, other than death penalty or imprisonment with or without laborfor life, the maximum term or maximum amount for the most severe crime shall beincreased by one half thereof, but shall not exceed the total of the maximumterm or maximum amount of the punishments specified for each crime, althoughminor fine and minor fine, or confiscation and confiscation may be imposedconcurrently (subparagraph 2 of Article 38(1) of the Criminal Act).
Aggravation of Penalties for Violence Against Car Drivers During Operation- If a person assaults a car driver during operation, he/she shall be sentenced to up to five years of imprisonment or fined up to KRW 20 million (Article 5-10, paragraph 1 of the Act on the Aggravated Punishment, Etc. of Specific Crimes).
- Suppose a person violates and injures a car driver during operation (including when the driver has temporarily stopped the car during operation for passengers to board or alight to provide passenger transport services specified under Article 2, subparagraph 3 of the Passenger Transport Service Act). In this case, the assailant shall be sentenced to more than three years of imprisonment for a limited term. If the assailant’s violence results in the car driver’s death, he/she shall be sentenced to imprisonment for life or more than five years of imprisonment (Article 5-10, paragraph 2 of the Act on the Aggravated Punishment, Etc. of Specific Crimes).
Aggravation of Penalties for Injuries Incurred by Dangerous Driving- Suppose a person drives a car, a motorized bicycle, or construction machinery other than that set forth in the proviso of Article 26(1) of the Construction Machinery Management Act in situations that make normal driving difficult, such as driving while being drunk or taking drugs, and injures another person accordingly. In this case, the assailant shall be sentenced to 1 to 15 years of imprisonment or fined up to KRW 10 million to KRW 30 million. If the assailant’s act results in another person’s death, he/she shall be sentenced to imprisonment for life or more than three years of imprisonment (Article 5-11(1) of the Act on the Aggravated Punishment of Specific Crimes).
Mitigation of Penalties If the Criminal Surrenders or Confesses- Thepunishment may be mitigated or remitted when ① self-denunciation is made tocompetent authorities who have the responsibility to investigate the crimes andwhen ② voluntary confession is made to the victim in respect to crimeswhich cannot be prosecuted against the victim's will (Article 52 of theCriminal Act).
Mitigation of Punishment in Extenuation of Circumstances- If there are reasons for the crime to be extenuated, the criminal may be penalized with a lighter sentence than the one determined for the corresponding criminal act according to certain standards (Article 53 of the Criminal Act and the Collection of Legal Terms and Cases).
- If various punishments are determined for a crime, the punishment shall be determined before its extenuation (Article 54 of the Criminal Act).
Mitigation of Penalties under the Law- Mitigation of penalties under the law shall proceed as follows (Article 55, paragraph 1 of the Criminal Act).
· The death sentence shall be mitigated to imprisonment for life, or 20 to 50 years of imprisonment or imprisonment without labor.
· Imprisonment for life, or imprisonment for life without labor shall be mitigated to 10 to 50 years of imprisonment or imprisonment without labor.
· Imprisonment for a limited term, or imprisonment without labor shall be mitigated by 1/2 of its original penalty.
· Disqualification shall be mitigated to more than seven years of suspension of qualification.
· Suspension of qualification shall be mitigated by 1/2 of its initial penalty.
· A fine shall be mitigated by 1/2 of its original amount.
· Detention shall be mitigated to 1/2 of its original term.
· A penalty shall be mitigated by 1/2 of its original amount.
- If there are various reasons under the law for mitigation, there may be repeated mitigation of penalty.
Order of Aggravation and Mitigation of Penalties If there are reasons to aggravate or mitigate penalties, the following order shall be followed (Article 56 of the Criminal Act).1.Aggravation of penalties under each provision of the Criminal Act
2. Aggravation of penalties for a person committing a crime by using an innocent person, or abetting and aiding another person in a special way
3. Cumulative offense
4. Mitigation of penalties under the law
5. Concurrent crimes or multiple offenses
6. Mitigation of punishment upon consideration of extenuating circumstances
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