A Study on the Decision-Making Behavior of Judge in the Criminal Trial: The Effect of Sentencing Guideline in South Korea

Abstract

ABSTRACT We study how the adoption of sentencing guidelines affects punishment for crimes. Using 6350 first-trial rulings for criminal cases in South Korea for the period before the adoption of sentencing guidelines (2003–2011) and the period after (2011–2016), we estimate the ordered probit model, classifying punishment into four categories of severity. According to our estimates, punishment for most crimes becomes lighter after the adoption of sentencing guidelines. Among economic crimes, embezzlement and theft receive less severe punishment, while punishment for fraud has strengthened. Of non-economic crimes, perjury and false accusation receive lighter punishment, which would hardly improve the low trust level in South Korean society. Punishment for the obstruction of justice has also weakened, reflecting growing awareness of individual rights among citizens. Judges who prefer severe punishment before the adoption of sentencing guideline maintain their stringent sentences, while those who prefer light punishment lower sentences with confidence due to the sentencing guideline. We call this phenomenon judge’s upward-risk aversion not to exceed the guideline in sentencing.