마약류관리에관한법률위반(대마)
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 2,000,000.
The above fine shall not be paid by the defendant.
1. Summary of grounds for appeal;
A. The judgment of the court below which rendered a suspended sentence against the defendant is erroneous in the misapprehension of legal principles, although the defendant could not be sentenced to a suspended sentence due to a prior conviction of qualification or more than a suspended sentence.
B. The lower court’s delay of sentencing for the Defendant is too unfortunate and unfair.
2. In the case of sentencing of imprisonment or imprisonment without prison labor for not more than one year, suspension of qualifications or a fine, as to the suspension of sentence, Article 59 (1) of the former Criminal Act may be suspended when the circumstances in the past are obvious, in consideration of the matters of Article 51, in regard to the suspension of sentence;
Provided, That this shall not apply to a person who has been sentenced to suspension of qualifications or more severe punishment.
“......”
The term "previous convictions who have been sentenced to the suspension of qualification or heavier punishment" in the proviso refers to the criminal history of which the suspension of qualification or heavier punishment has been sentenced, and it is reasonable to interpret that the punishment has lost its effect or not.
On the other hand, even if a person who was sentenced to a suspended sentence loses its effect after the lapse of the term of suspension without the invalidation or cancellation of the sentence under Article 65 of the Criminal Act, this does not have the legal effect of the sentence, and it does not have itself nor have the fact that there was the sentence itself. Thus, it shall be deemed that the person constitutes “a person who has been sentenced to suspension of qualification or heavier punishment,” who is a reason for disqualification for the sentence under the proviso of Article 59(1) of the Criminal Act (see Supreme Court Decision 2007Do8269, Oct. 9, 208, etc.). According to the records, the defendant was sentenced to the period of suspension of the sentence for ten months on July 19, 194; the defendant was sentenced to imprisonment with prison labor for not less than two years for fraud; the defendant was sentenced to imprisonment with prison labor from the Changwon District Court on October 29, 198 to Busan High Court on July 20 to Busan High Court on February 27, 2002.