[Interview file] In principle, the sentence Lee Jae-yong should have received

Yesterday (January 18, 2021), Vice Chairman Lee Jae-yong of Samsung Electronics was sentenced to two years and six months in prison at a remand for destruction.

This is the minimum sentence that can be legally sentenced to Vice Chairman Lee Jae-yong.

It simply did not postpone the execution of the sentence.

Vice-Chairman Lee may be disappointed as the court announced that it could use the Compliance Committee as a sentencing factor from the beginning of the trial and gave hope that a probation would be possible.

However, apart from the disappointment of Vice Chairman Lee Jae-yong, the fact that the sentence sentenced by the 1st Criminal Division of the Seoul High Court is the minimum legally permitted sentence remains unchanged.

What is more controversial is that it is true that the sentence sentenced to Vice Chairman Lee Jae-yong is within the legally acceptable range, but it is a sentence that cannot be issued if the ``sending standard'' that judges adhere to in most cases is normally applied.

Vice Chairman Lee Jae-yong has a special standard, not a universal standard that applies to everyone.

Then, what is the reason why the Seoul High Court's Criminal Division 1, which judged Vice Chairman Lee Jae-yong, disregarded the sentencing criteria and imposed the minimum sentence by applying special criteria?

Let me explain step by step.

There are people who misunderstand that if the judge admits several criminal charges against someone, the sentences that correspond to the charges that are convicted are all summed up and sentenced.

This is a way of understanding that if you have committed murder and fraud, you will be sentenced to 30 years in prison by adding 10 years to the sentence for murder and 10 years for fraud.

However, in our country's legal system, when multiple criminal charges are applied to a person, the sentence is not determined by combining all the sentences corresponding to each criminal charge.

When multiple crimes are established at the same time, the court sentence is taken as the basis for the heaviest crime charge, but the upper limit of the court sentence for this crime is increased by a certain percentage.

Therefore, the most important thing when judging the sentence is which of the various criminal charges has the highest court sentence.

After all, this crime is the most decisive factor in determining the sentence.

If murder, fraud, and theft are both a problem, then the crime of murder determines the sentence.

In the case of Professor Kyung-Shim Chung, who was convicted in the first trial a while ago, the decisive crime determining the sentence was not the charge of forgery of citations, but the use of undisclosed important information, which was relatively low in attention.

Among the 11 crimes convicted against Professor Chung, the highest court sentence was a violation of the ban on the use of undisclosed important information.

What about Vice Chairman Lee Jae-yong?

The crime of embezzlement, not the offering of bribes, which was the most noticeable, is the key to determining the sentence.

For Vice Chairman Lee Jae-yong, the amount of corporate capital embezzlement recognized by the Supreme Court's appeal and repatriation of destruction was 8.6 billion won, and the statutory imprisonment for embezzlement of 5 billion won or more is five years or more.

The highest of all charges convicted.

If the statutory sentence is imprisonment for more than 5 years, it means that the sentence can be set within the range of 5 years or more and up to 30 years, the upper limit of abandoned imprisonment.

However, in the case of Vice Chairman Lee, since other crimes such as embezzlement and bribery are also a problem, according to the principle of aggravating competing crimes, the upper limit of embezzlement, which is a basic crime, is increased by 1.5 times.

Therefore, it is the range that can be sentenced from 5 to 45 years in prison.

but it did not end here.

Article 53 of the Criminal Code guarantees that a judge can reduce the sentence "when there is a reason to take into account the top of the crime".

Since there are no specific rules on "reasonable reasons", crop reduction can be viewed as an area entirely left to the discretion of the judge.

In the case of delinquent imprisonment, the range that can be reduced is up to half of the existing sentence.

Therefore, if the judge decides to reduce the amount of vice-chairman Lee Jae-yong, the range of the legal sentence for vice-chairman Lee Jae-yong will be reduced from 2 years and 6 months to 22 years and 6 months in prison.

(This is referred to as the'prime sentence.')

With this, we have decided that the sentence of two years and six months in prison sentenced by the 1st Criminal Division of the Seoul High Court to Vice Chairman Lee Jae-yong is the'minimum sentence that can be legally sentenced after reducing the amount to the maximum. '.

Regarding the conviction of each charge, the court of revocation of the revocation, which is bound by the conclusion of the Supreme Court appeal, could not legally pronounce a sentence lower than two years and six months in prison.

The only thing that Vice Chairman Lee Jae-yong has not been able to obtain is a measure to delay the execution of the minimum sentence and a probation.

Of course, the probation was the goal of Vice-Chairman Lee's goal after the court brought the story of the Compliance Committee.

the'minimum sentence', the court had a task that had to be solved first in order to sentence the'minimum sentence'.

It was a'senior standard'.

If the sentencing criteria, which set the scope of the recommended sentence, were normally applied, it is difficult to sentence the minimum sentence that can be legally sentenced.

This is because the range of the recommended sentence according to the sentencing criteria is much narrower than the range of possible sentencing sentences, and therefore the lower limit of the recommended sentence according to the sentencing criteria is also much higher than the minimum sentence that can be sentenced by law.

Therefore, in order to sentence the minimum sentence, the sentencing criteria had to be excluded.

Ignoring the sentencing criteria was a prerequisite for the minimum sentence.

Before explaining in earnest, let's take a closer look at what the'Send Standards' are.

As previously seen, after judging the accused's charge as guilty, calculating various factors based on the court sentence for the accused accusation results in the'range of sentence that can be legally sentenced' (trial sentence).

However, since the scope of the punishment is so wide in most cases, it was necessary to create a standard that sets the scope of the recommended sentence so that judges across the country could sentence with a somewhat consistent tendency.

This is the'senior standard'.

The sentencing standard is in principle a non-binding advisory standard, but when a judge deviates from the sentencing standard, it is impossible to deviate from the sentencing standard without a reasonable reason because a reason must be written in the judgment.

So, the percentage of judges complying with the sentencing standards is 89.7%.

(Based on 2009-2019) In

addition, in the case of vice-chairman Lee Jae-yong's case of the sentence for embezzlement and malpractice, the compliance rate is 93.9%, which is higher than the average.

(As of 2009-2019, Source: Data presented by Judge Oh-seop Song in November 2019) This means that 93.9% of those convicted of embezzlement were sentenced to sentences based on the sentencing criteria. Excluding exceptional cases, the compliance rate goes up even further.

Vice Chairman Lee Jae-yong's embezzlement amount is 8.6 billion won, so it does not fall into this.

In the end, in cases of embezzlement crimes such as Vice Chairman Lee Jae-yong, judgments that deviate from the sentencing criteria only appear in less than 6.1% of cases.

However, the judiciary in charge of repatriation of vice-chairman Lee Jae-yong's destruction and repatriation announced that it would deviate from the sentencing criteria and sentence a more generous sentence than the lower limit of the sentencing criteria.

What is the reason?

The judge explained:

"The reason that the defendant Lee Jae-yong embezzled Samsung Electronics' funds is because the former president requested sponsorship in the name of Samsung Electronics, and as we have seen before, all the damages of the embezzlement crime in business were recovered. Taking into account the fact that it is very difficult to refuse it if requested, it is somewhat unfair to apply the sentencing criteria as it is, even if the accused Lee Jae-yong is sentenced to imprisonment.”

However, the explanation of the Criminal Division 1 of the Seoul High Court seems to contradict the logic of the Supreme Court.

The logic of'passive bribery provided because he failed to reject the president's request and coercion' is the second trial court sentenced to probation and released vice chairman Lee Jae-yong, who was imprisoned in a detention center for 353 days after a warrant of arrest was issued during the special investigation. It was the conclusion.

However, the Supreme Court said in a ruling against Choi Seo-won (formerly Choi Soon-sil), "The defendant, Lee Jae-yong, actively offered bribes as a willingness to bribe his duties in order to gain profits related to his duties by taking advantage of the former president's request for bribes."

It was based on the logic of'active bribery' rather than'passive bribery'.

In addition, it is necessary to examine whether the fact that embezzlement and bribery in response to the president's support request and pressure could be the reason for ignoring the sentencing standards.

As we will see in detail later, the sentencing standard lists variables that make it possible to apply different sentences to similar crimes.

This is called'(special/general) sentencing factor'.

Among the sentencing factors, there is a'reduction factor' which is an element that can reduce the sentence, and there is a'weighting factor' that is an element that can augment the sentence.

In the case of embezzlement, sentencing factors related to passive behavior in response to the president's pressure or demand have already been presented.

These are things such as "passive crimes under pressure, in fact," or "if you are unable to consume and hold most of the crime proceeds."

In the case of bribery, "passively responding to the client's active request" is already included in the sentencing criteria as a reduction factor among special sentencing factors.

Vice Chairman Lee Jae-yong's revocation trial means that the elements suggested by the court for the reason that the sentencing standards cannot be applied are already included in the sentencing standards.

'Passive embezzlement theory' or'passive bribery theory' can be a factor to consider cutting sentences within the framework of the sentencing standard, but it is difficult to be a reason for deviating from the sentencing standard itself.

Nevertheless, the vice-chairman Lee Jae-yong's destructive and repatriation court sentenced him to two years and six months in prison, which is the minimum sentence that can be sentenced to the extent that it does not overturn the Supreme Court's judgment of innocence, which deviates from the sentencing standards that apply to most people.

In 93.9% of the cases, the criteria applied in the case were ignored, and an exception of 6.1% was allowed to Vice Chairman Lee Jae-yong.

Was a special standard needed for a special person like Vice Chairman Lee Jae-yong?

Then, if the sentencing criteria were normally applied, in other words, what was the sentence that Jae-yong Lee should have received if it were in principle?

The court also stated in the judgment the range of sentences that can be applied if the sentencing criteria are followed.

According to the analysis of the court, the range of sentences recommended according to the sentencing criteria is 4 to 10 years and 2 months in prison.

(This is a contention treatment for crimes against bribery for which sentencing standards have been established, and for crimes that violate the law on testimony and appraisal at the National Assembly, among crimes that take the embezzlement crime as the basic crime, in accordance with the standards presented in the sentencing standard. The details of the competition handling formula are not mentioned here.)

This recommended sentence came out because Vice Chairman Lee Jae-yong's sentence for embezzlement was judged as a'basic domain'.

If it was not the basic area but the'reduction area' or the'weighted area', the recommended sentence range would have changed.

The reason that the sentence range is changed to'reduction','basic' and'weight' is due to the special sentencing factor mentioned for a while.

This is a term that refers to factors that need to be considered in determining the scope of the sentence.

The special sentencing factor is further divided into a special sentencing factor as a'reduction factor' and a special sentencing factor as a'weight factor'.

In relation to a crime, if there are more factors that can reduce the sentence (reduction factor) than the factor that can aggravate the sentence (weighting factor), the scope of the sentence of the crime is judged as'reduction area'.

The scope of the recommended sentence is relatively low.

Conversely, if the weighting factor is more than the reduction factor, it is judged as a'weighted area' and the range of the recommended sentence is raised.

If there is no special factor or the number of reduction factors and weighting factors is the same, it is judged as a'basic area'.

The list of reduction factors and weighting factors among the special sentencing factors for embezzlement and malpractice is shown in the table below.

Then, with regard to the embezzlement of Samsung Electronics corporate funds committed by Vice Chairman Lee Jae-yong, is there more'weighting factors' or more'reduction factors' among the special sentencing factors suggested in the sentence for embezzlement and malpractice?

The judges saw that the two elements were equally one at a time.

Among the special sentencing factors, Vice-Chairman Lee's actions also include the side of "improvement of impunity or the case of recovery of substantial damage", but at the same time, the aggravating factor of "the case of very poor criminal conduct".

-1 + 1= 0. Therefore, it is the logic of the judge that Vice Chairman Lee Jae-yong's crime of embezzlement should be judged as a'basic domain'.

In conclusion, the sentence of Vice Chairman Lee Jae-yong must be somewhere between 4 years and 10 years and 2 months of imprisonment, even if it conforms to the recommended sentence range of the sentencing criteria stated by the court. .

This is "the sentence Lee Jae-yong should have received if it was in principle."

Even the lower limit of the recommended sentence range is 1 year and 6 months more than Vice Chairman Lee Jae-yong's actual sentence of 2 years and 6 months in prison.

(For reference, the sentence of the special prosecutor's office was 9 years in prison.)

However, as mentioned earlier, the court of the 1st Criminal Division of the Seoul High Court brought out the logic of'passive embezzlement/bribery' that seemed to contradict the interpretation of the Supreme Court, and was already included in the sentence. After deviating from the sentencing criteria based on the reasons, a'minimum sentence that can be sentenced' was sentenced, much lower than the recommended sentence range suggested by the sentencing standards.

Even if probation has not been sentenced, this alone is a privilege not allowed for 93.9% of people, and only 6.1% of people can enjoy it.

When I was sentenced to four years in prison in the first trial, I wrote to Professor Kyung-Shim Chung that, according to the logic of the judgment and the sentencing criteria, four years in prison seemed to be within the normal range of sentences.

It was a response to the irrational response,'Does it make sense to sentence you to four years in prison for one citation?'

However, if it is justified to disregard the sentencing standards, which were set as a standard that is universally applicable to everyone, and sentence the chaebol to the most generous sentence legally permitted, the court will do so when the question of sentence is raised again in another trial. Will there be any words left?

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It's a sad truth that everyone knows, but still repeats itself, that every time hard questions pile up, trust in the courts and judges diminish.