[News Terms] What Is the 'American-Style Probation' Proposed by a Sitting Prosecutor?

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[Asia Economy Reporter Kim Jong-hwa] 'Suspended sentence' is a system in which a defendant is sentenced to a criminal penalty but the execution of the sentence is postponed for a certain period instead of being carried out immediately. If that period passes, the effect of the sentence is lost, and the sentence is not executed. However, to encourage the defendant's normal social reintegration and prevent crime, the court may order probation or impose community service or attendance orders.

However, in domestic courts, although the rate of suspended sentence pronouncements is high, compensation to victims and probation orders are not mandatory. Because of this, a disharmony in sentencing has emerged where defendants prefer suspended imprisonment, which is a lighter punishment under criminal law, over fines. According to the Criminal White Paper by the Judicial Research and Training Institute, the rate of suspended sentence pronouncements in first-instance criminal cases increased from 21.1% in 2012 to 34.3% in 2020.

On the other hand, U.S. federal law treats suspended sentences as an independent sentencing type, equivalent to imprisonment or fines, and imposes 10 mandatory compliance requirements and 23 discretionary compliance requirements. During the suspension period, physical freedom can be restricted through intermittent detention of up to one year or quasi-house arrest, and warrantless searches and seizures are also permitted.

In particular, when a suspended sentence is given for certain crimes such as violence, 'restitution' to the victim is mandatory. In Korea, victims must directly apply for compensation orders in criminal cases, and even then, the acceptance rate is only 3.7%, which contrasts sharply. In 2020, the rate of suspended sentence pronouncements in U.S. federal criminal cases was 7.7%, only a quarter of Korea's rate.

Recently, in a quarterly journal of the Supreme Prosecutors' Office, Prosecutor Seo Gang-won (Seoul Central District Prosecutors' Office Trial Division 2, Bar Exam 1st class) pointed out the limitations of the current suspended sentence system in a paper titled "Problems and Improvement Measures of the Suspended Sentence System in Korea," proposing improvement measures such as ▲ linking probation to suspended sentence pronouncements ▲ empowering courts to order victim compensation ex officio ▲ guaranteeing judges broad discretion in sentencing types.

Prosecutor Seo criticized, "It should function as a type of criminal sanction, not a discretionary disposition," adding, "Suspended sentences without probation or community service are an abandonment of state responsibility and effectively serve as a pardon for professional criminals or the wealthy for whom criminal records have little significance."