[Interview file] How was the sentence of Han Kyung-Shim Jung decided?

The response to the sentence sentenced by the first trial court to Professor Kyung-Shim Chung on December 23rd varies from person to person.

'4 years imprisonment for fake citations!

Then 000 daughter?

The spectrum ranges from reactions such as'What is the XXX son?' to'There are 11 recognized crimes, but only 4 years!'

However, it is not'forgery of citations' nor '11 crimes' to determine whether the sentence for 4 years imprisonment for Professor Kyung-Shim Chung is appropriate.

Roughly speaking, you only have to look at one of the charges the judge found guilty.

This is the'use of undisclosed material information' which is prohibited by the Capital Markets Act.

According to the Korean penal code, even if a person commits multiple crimes, it is not possible to sentence them to the sum of the sentences for each crime.

Instead, there is a criterion for applying the sentence in these cases. The calculation method is slightly different when multiple crimes are applied to a single action (imaginary contention) and when multiple actions constitute multiple crimes (substantial contention).

In the case of Professor Kyung-Shim Chung, there are various criminal acts and various crime names.

In this case, the upper limit is the upper limit of the upper limit of the statutory sentence, plus 1/2 of the upper limit.

In short, the upper limit is the upper limit of the sentence multiplied by 1.5 times the upper limit of the court penalty for the heaviest criminal offence.

It is called the weighting of contenders.

For example, consider the case of committing fraud and theft at the same time.

Since the statutory upper limit for fraud is 10 years in prison, which is heavier than the crime of theft, the upper limit for fraud is multiplied by 1.5 times, which is the upper limit of the sentence that can be sentenced.

The range of legal sentences that can be sentenced in the trial calculated in this way is called a punishment sentence (處斷刑).

. Let's go back to the case of Professor Kyung-Shim Chung.

Among the 11 crimes convicted in the first trial, the most serious crime by the court sentence is the use of undisclosed important information.

The statutory sentence is "abandoned imprisonment for one year or more."

In this case, the upper limit of the statutory sentence is 30 years of imprisonment, which is the upper limit of imprisonment for abandonment.

However, as explained earlier, since Professor Kyung-Shim Chung was judged to have committed other crimes, the upper limit of his punishment is raised by 1.5 times the 30-year imprisonment.

So, in the case of Professor Kyung-Shim Chung, the range of sentences that a judge can sentence, that is, the sentence of execution, ranges from 1 year to 45 years in prison.

Therefore, the court in charge of Professor Kyung-Shim Chung does not violate the law even if it is sentenced to any sentence between 1 year and 45 years in prison.

However, if the range of sentences that can be sentenced is so wide, depending on which judge you meet, there may be a side effect that the sentenced sentence varies greatly among defendants.

Therefore, the Supreme Court's sentencing committee recommends by presenting detailed criteria for appropriate sentences for each crime type.

This is referred to as'the screening criteria'.

It is not a mandatory standard, it is a recommendation, but few judges deviate from the guidelines except in very special cases.

Then, in order to determine whether the four-year imprisonment sentenced to Professor Kyung-Shim Chung is appropriate, we only need to look at the guidelines for crimes using undisclosed material information.

The sentencing criteria for the use of undisclosed material information are differentiated according to the amount of unfair gains, and Professor Kyung-Shim Chung's unfair gains range from KRW 100 million to less than KRW 500 million.

(Type 2).

In this case, the sentencing standards recommended by the Supreme Court's sentencing committee are 1 to 4 years in prison for the'basic area', 10 months to 2 years and 6 months in prison for the'reduction area', and 2 years and 6 months in prison for the'weighted area'. ~6 years in prison.

Then, which of Professor Kyung-Shim Chung's use of undisclosed important information (Type 2) belongs to the basic area, the reduction area, or the weighted area?

The most important criterion for dividing basic, reduction and weight is'special sentencing factor'.

If there is a special sentencing factor belonging to the reduction factor, the sentence is determined in the'reduction area', and if there is a special sentencing factor belonging to the weighting factor, the sentence is set in the'weighted area'.

If there are none, or if they have similar reduction and weighted sentencing factors, the sentence is decided in the'basic domain'.

Then, in the case of the use of undisclosed important information, which ones are considered as special sentencing factors for reduction and which ones are considered as special sentencing factors for weighting?

This is also stated on the website of the Supreme Court sentencing committee.

In the case of the use of undisclosed important information, the special sentencing factors belonging to the reduction factor are as follows.

-In fact, if the degree of involvement in the crime due to pressure, etc. is insignificant-If the

accused is a deaf person-If the

accused has surrendered or complained of internal corruption In

the case of the use of undisclosed material information, the special sentencing factors belonging to the weighting factor are as follows.

-In the case of intentionally concealing the proceeds of the crime-In case

of a very poor crime law

-A teacher for the commander-A

crime of the same kind (securities crime)

criteria, the court will be

Determined that Professor Kyung-Shim Chung's use of undisclosed important information falls within the'weighted area'.

There is no special sentencing factor that corresponds to the reduction factor, but it applies to the case of'intentionally concealing criminal proceeds', which is a special sentencing factor that corresponds to the weighting factor.

Prof. Jeong has sentenced about 100 million won in violation of the Crime Profit Concealment Control Act out of about 200 million won in unfair gains acquired through undisclosed information, so according to the logic of the first trial decision, it is clearly a'weighted area'.

Then, as previously mentioned, in the case of the use of undisclosed material information 1. Unfair gain is more than 100 million won and less than 500 million won (Type 2) 2. If it falls under the'weighted area', the sentence suggested by the sentencing criteria is two years in prison 6 From months to six years in prison.

In fact, to be more precise, the ceiling could be higher than six years in prison.

The use of undisclosed material information is a crime for which sentencing criteria have been set, but among other crimes recognized by Professor Jeong, there are crimes for which the sentencing criteria have not been set.

When there are both crimes with and without a sentencing criterion, the sentencing criterion has a stipulation on what to do with the lower limit, but there are no explicit rules on the upper limit.

So strictly speaking, in the case of Professor Kyung-Shim Chung, only the lower limit of the sentence range according to the sentencing criteria, which is 2 years and 6 months, is clear.

The upper limit seems to be set at a level of just over 6 years (considering competition with other crimes), but it is not clear.

It is a very complicated story, so you can think of the range of the sentencing criteria as approximately 2 years 6 months to 6 years + alpha level.

From here on, it can actually be seen as a discretionary area of ​​the court.

After judging innocence for each charge applied to Professor Kyung-Shim Chung, the range of sentences is set from 2 years and 6 months in prison to 6 years in prison (+ alpha). It can be seen that it is up to the discretion of the court to determine the amount of sentence between months and six years (+ alpha).

Even if the discretion of an

does not mean that it is decided without justification.

The court will sentence the sentence in consideration of various factors related to the crime, such as general sentencing factors.

Of course, it is in fact up to the discretion of the courts to decide which ones to consider.

When looking at the reasons for the sentencing indicated in the judgment, the court did not stop at ``attempting to conceal evidence after the crime'', not only passively denying the crime, but also actively and concretely asserting false facts, and those who tell the truth, It seems to have taken into account the fact that they were talking, and the fact that they suffered pressure and criticism as a disadvantage to Professor Kyung-Shim Chung.

Let me summarize the story so far.

Prof. Kyung-Shim Jung was sentenced to four years in prison, not because of'a citation.

Not all 11 criminal charges admitted to do so are counted in a meaningful way when setting a sentence.

When determining the sentence, the most meaningful crime is'use of undisclosed material information', and if the sentencing standard formula is applied, the sentence range is determined at the level of 2 years 6 months to 6 years (+ alpha) in prison.

The judge sentenced me to a moderate sentence of four years in prison.

Of course, it is by no means a light sentence.

However, it is a little questionable if the sentence is between 2 years and 6 months in prison and 6 years in prison + Alpha, and whether or not the 4 year imprisonment sentenced by the court can be seen as a ridiculous sentence, as some claim.

-Additional

explanation-

To be more precise, the question may arise that in fact, applying the above-mentioned sentencing criteria is also relatively tolerant.

The court stated in the ruling that even the current sentencing standards for the use of undisclosed material information could not be applied.

The current sentencing standard for securities crimes was enforced on July 1, 2012, as the statutory sentence for the use of undisclosed material information increased from '10 years imprisonment' to '1 year or more imprisonment' in 2015. In principle, the sentencing standards need to be raised.

It seems to have been taken into account that the range of sentences suggested by the current sentencing standards was made before the statutory sentence for the use of undisclosed material information was raised in the sentence of 4 years imprisonment sentenced by the court.