[2] Meaning of Article 65 of the Criminal Act that "a sentence shall lose its validity", and in a case where a sentence becomes null and void pursuant to Article 65 of the Criminal Act, whether such criminal conviction may be deemed as "a case of imprisonment with prison labor" under Article 2 (3) of the Punishment of Violences, etc. Act (negative)

[3] In a case where the term of imprisonment with prison labor under Article 2(3) of the Punishment of Violences, etc. Act was imposed before the expiration of the term of imprisonment with prison labor, but the term of imprisonment with prison labor lapsed without the invalidation or cancellation of the term of imprisonment with prison labor, which was sentenced before the term of imprisonment with prison labor, and the term of validity of the term of imprisonment with prison labor has expired (negative)

[2] Article 65 of the Criminal Act provides, “The sentence of a punishment shall lose its effect when it has elapsed without the invalidation or revocation of the sentence after the suspension of execution of punishment was sentenced.” Here, the meaning of “the sentence loses its effect” is the purport that the legal effect of the sentence by the sentence shall be extinguished in the future, as in the same manner as the sentence becomes invalidated. Therefore, even if the sentence becomes invalidated pursuant to Article 65 of the Criminal Act, the previous conviction cannot be deemed as “a case of imprisonment with prison labor” as provided by Article 2(3) of the Punishment of Violences, etc. Act.

[3] Even though there was a separate sentence of probation prior to the expiration of the term of imprisonment with prison labor, the term of probation has expired without invalidation or cancellation of the term of probation, and even imprisonment with prison labor, which was sentenced prior to the term of invalidation of the term of probation, if the term of imprisonment itself has expired, such imprisonment with prison labor may not be deemed to constitute “a case of being sentenced to imprisonment” as stipulated in Article 2(3)

1. Article 2(3) of the Punishment of Violences, etc. Act (hereinafter “Assault Punishment Act”) provides that “If a person who has been sentenced at least two times to imprisonment for a violation of this Act (including any corresponding provision of the Criminal Act and any corresponding provision, any habitual offender, any special crime, any habitual offender, any habitual offender, any criminal attempt of a special crime, any habitual offender, and any habitual special crime) and any other crime provided for in each subparagraph of paragraph (2) once again commits an offense again, he/she shall be punished as a repeated offender, the punishment shall be aggravated as follows.” However, in cases where a punishment becomes invalidated pursuant to the Act on the Lapse, etc. of Punishment of Violences, etc., the legal effect of the sentence becomes extinguished in the future, and such criminal offense is not deemed to be “where he/she has been sentenced to imprisonment” as referred to in Article 2(3) of the Punishment of Violences Act after such punishment becomes invalidated.

Meanwhile, Article 65 of the Criminal Act provides, “The sentence of a punishment shall lose its effect when it has elapsed without the invalidation or revocation of the sentence after the suspension of execution of punishment was sentenced.” Here, the meaning of “the sentence loses its effect” is the purport that, like the invalidation of the sentence as seen earlier, the legal effect of the sentence by the sentence shall be extinguished in the future (see, e.g., Supreme Court Decision 2010Do8021, Sept. 9, 2010). Therefore, even in cases where the sentence loses its effect pursuant to Article 65 of the Criminal Act, the previous conviction cannot be deemed as “the case of imprisonment with prison labor” under Article 2(3) of the Punishment of Violences Act.

In addition, even though there was a separate sentence of suspended sentence before the expiration of a certain period of imprisonment, the period of suspended sentence has expired without the invalidation or cancellation of the suspended sentence, and even imprisonment that was sentenced before the suspended sentence has expired, if the period of invalidation of the sentence itself, the imprisonment cannot be deemed to constitute “a case of imprisonment” under Article 2(3) of the Punishment of Violences Act due to the invalidation of the sentence (see Supreme Court Decision 2014Do7088, Sept. 4, 2014).

2. The lower court: (a) sentenced the Defendant to a two-year suspended sentence of imprisonment for a violation of the Punishment of Violences Act on September 26, 200; (b) sentenced the Defendant to a two-year suspended sentence of imprisonment for a violation of the Road Traffic Act on May 19, 205; (c) sentenced to a two-year suspended sentence of imprisonment for a violation of the Punishment of Violences Act (joint injury) on June 5, 2008; and (d) recognized the fact that the judgment became final and conclusive on January 31, 2013; and (b) sentenced the Defendant to a two-year suspended sentence of imprisonment for a two-year period of imprisonment for a violation of the Punishment of Violences Act (collective, deadly weapons, etc.) on the instant facts charged by deeming that the Defendant constituted “a person who has been sentenced to imprisonment not less than twice in violation of the Punishment of Violences Act” and sentenced the Defendant to a two-year suspended sentence by applying Article 2(3) of the Punishment of Violences Act.

3. We examine whether the Defendant constitutes “a person who has been sentenced to imprisonment not less than twice in violation of the Punishment of Violences Act” in accordance with the aforementioned legal doctrine.

① The period of invalidation under Article 7(1)2 of the former Act on the Lapse of Punishment, etc. of Violences (amended by Act No. 10211, Mar. 31, 2010) is five years from the date on which the execution of the sentence is completed or exempted. However, although a suspended sentence was rendered before the expiration of the period of invalidation of a criminal record, it appears that the period of probation has expired without invalidation or cancellation of the suspended sentence. ① A criminal record appears to have passed five years from the time of invalidation of the sentence. ② Unless there are circumstances such as the invalidation or cancellation of the suspended sentence, a criminal record cannot be deemed to be “a case of imprisonment” under Article 2(3) of the Punishment of Violences Act.

(3) Even before a suspended sentence, if the sentence has not been invalidated or revoked and the grace period has expired, the legal effect of the sentence becomes extinct in the future in accordance with Article 65 of the Criminal Act. Therefore, barring any circumstance such as the invalidation or revocation of the suspended sentence, it cannot be said that the previous conviction was “a case of imprisonment with prison labor”.

For the foregoing reasons, ① if a criminal record is excluded, the Defendant cannot be deemed to constitute “a person who has been sentenced to imprisonment not less than twice” as referred to in Article 2(3) of the Punishment of Violences Act. Therefore, the lower court should have determined whether to apply Article 2(3) of the Punishment of Violences Act after examining whether a suspended sentence of imprisonment is invalidated or revoked. Thus, the lower court erred by misapprehending the legal doctrine as seen earlier, and failing to exhaust all necessary deliberations.

The ground of appeal pointing this out is with merit.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)