1. "A crime for which judgment to punish with imprisonment without prison labor or a heavier punishment has become final and conclusive and a crime committed before such judgment has become final and conclusive" refers to concurrent crimes provided for in the latter part of Article 37 of the Criminal Act. In such cases, in light of the language, legislative intent, etc. of the latter part of Articles 37 and 39(1) of the Criminal Act, where a crime for which judgment has not yet become final and conclusive cannot be adjudicated concurrently with a crime for which judgment has already become final and conclusive, a punishment shall be imposed on such crime shall be imposed in consideration of equity, and where a crime for which judgment has not yet become final and conclusive cannot be deemed as concurrent crimes under the latter part of Article 37 of the Criminal Act and Article 39(1) of the Criminal Act cannot be imposed, or mitigated or exempted from such punishment (see, e.g., Supreme Court Decision 2009Do948, Oct. 27, 2011). Meanwhile, where several crimes for which judgment has not yet become final and conclusive and several crimes for which have not yet become final and conclusive.

2. The record reveals the following facts.

A. ① On November 23, 2017, the Defendant was sentenced to four months of imprisonment with prison labor or one year of suspended execution as a crime of assault at the Daejeon District Court’s Branch Branch, Daejeon District Court’s Branch on December 1, 2017 (hereinafter referred to as “previous conviction”) and the judgment became final and conclusive on June 21, 2018 by the same court on June 21, 2018 (i) imprisonment with prison labor for the crime of violating the Road Traffic Act (refluence) and the crime of insult, six months of suspended execution, and two years of suspended execution, and three million won of fine for the crime of injury (hereinafter referred to as “previous conviction”) respectively, and the judgment became final and conclusive on June 29, 2018 (hereinafter referred to as “previous conviction”).

B. (2) The offense of insult, among the crimes in the part of the suspension of the execution of imprisonment with prison labor for a previous offense (hereinafter referred to as “previous offense”), is committed on August 21, 2017. The offense of insult is committed on November 20, 2017, and the offense of violation of the Road Traffic Act (hereinafter referred to as “previous offense”) is committed on November 20, 2017, and ② the portion of a fine imposed on a previous offense is committed on December 19, 2017.

C. The criminal facts of the 2018 Godan1815 case (hereinafter referred to as the "2018 Godandan1815 case") in the first instance judgment are the crimes of injury on February 1, 2018, and the criminal facts of the 2019 Godan614 case (hereinafter referred to as the "2019 Godan614 case") in the first instance judgment are the crimes of destroying and damaging property and obstructing business affairs on February 18, 2019.

3. Examining the foregoing facts in light of the legal principles as seen earlier, separate punishment should be imposed on each of the crimes of 2018 Godan1815 and the crimes of 2019 Godan614 (hereinafter referred to as “each of the crimes in this case”). The reasons are as follows.

A. The crime of the 2018 Highest 1815 case is committed before the judgment of the previous conviction becomes final and conclusive, and the crime of the 2019 Highest 614 case is committed after the final and conclusive judgment.

B. B-(i) The crime of a criminal offense constitutes ① the crime of a criminal offense committed before the judgment becomes final and conclusive, and thus, the crime of a 2018 Godan1815, which was committed after the judgment becomes final and conclusive, constitutes a case where the same cannot be judged at the same time from the beginning. ② Since a fine was imposed on a criminal offense of a 2018 Godan1815, a concurrent crime of the latter part of Article 37 of the Criminal Act may not be established between the crime of a 2018 Godandan1815 and the crime of a 2019Kadan614, the crime of a 2018 Godandan614. Thus, Article 38 of the Criminal Act cannot be deemed to apply.

4. Nevertheless, the first instance court rendered a single sentence to the Defendant by applying Article 38(1)2 of the Criminal Act, on the premise that all of the instant crimes were concurrent crimes under the former part of Article 37 of the Criminal Act, and the lower court upheld the first instance judgment as it is. In so determining, the lower court erred by misapprehending the legal doctrine on concurrent crimes under Article 37 of the Criminal Act, thereby adversely affecting the conclusion

5. Therefore, without examining the grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below 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 Sang-ok

Justices Noh Jeong-hee

Justices Kim Jae-hwan in charge