가축분뇨의관리및이용에관한법률위반
The judgment below
Of them, the part against Defendant A shall be reversed.
Defendant
A shall be punished by a fine of KRW 1,000,000.
Defendant .
1. The main point of the grounds for appeal is that the lower court’s punishment (a fine of KRW 1,00,000,000 for each of the Defendants) is too uneased and unreasonable.
2. Determination
A. We examine the judgment of the court below on the grounds for appeal against Defendant A ex officio prior to the judgment on the grounds for appeal.
Article 59 (1) of the Criminal Act provides that in cases where a sentence of imprisonment or imprisonment without prison labor for not more than one year, suspension of qualifications or a fine is to be imposed, and the whole circumstances have been remarkable in consideration of the matters prescribed in Article 51, the suspension of sentence may be suspended.
A person who has been sentenced to suspension of qualifications or more severe punishment shall be excepted.
"........"
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.
Meanwhile, even if a person, who was sentenced to suspended sentence, loses the validity of the sentence after the lapse of the grace period 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 does not have itself nor have the fact that the sentence was rendered. Thus, he shall be deemed to fall under “a person having a criminal record who was 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, e.g., Supreme Court Decision 2011Do10570, Jun. 28, 2012). According to the records of the instant case, Defendant A was sentenced to suspended sentence for a violation of the Illegal Check Control Act at the Seoul Southern District Court on December 29, 193, which became final and conclusive on January 6, 199 after being sentenced to suspended sentence for more than one year, and in light of the legal principles as seen earlier, Defendant A was subject to suspended sentence for more than five years.”