특정범죄가중처벌등에관한법률위반(위험운전치상)등
The judgment of the court below is reversed.
A defendant shall be punished by imprisonment with prison labor for up to six months.
1. The main point of the grounds for appeal is that the lower court’s imprisonment (eight months of imprisonment, two years of suspended execution, and forty hours of order to attend a course) is too unhued and unreasonable.
2. The proviso of Article 62(1) of the Criminal Act provides that a suspended sentence may not be imposed on a crime committed within three years from the time a judgment sentencing imprisonment without prison labor or a heavier punishment became final and conclusive. Here, the phrase “when a judgment sentencing imprisonment without prison labor or a heavier punishment becomes final and conclusive” includes not only the sentence, but also the case where the suspended sentence has not elapsed, for which the judgment sentencing a suspended sentence becomes final and conclusive.
However, according to the records, the defendant was sentenced to two years of suspension of execution on November 23, 2017 for the crime of obstruction of performance of official duties, and this judgment became final and conclusive on December 1, 2017, and the defendant committed each of the instant crimes during the period of suspension of execution, and the court below can recognize the fact that the defendant was sentenced to suspension of execution on November 27, 2018, before the period of suspension of execution expires. Thus, the defendant is deemed to be disqualified for suspension of execution under the proviso of Article 62(1) of the Criminal Act, but the court below erred by misapprehending the legal principles as to the grounds for suspension of execution, which affected the conclusion of the judgment.
3. Accordingly, the judgment of the court below is reversed pursuant to Article 364(2) of the Criminal Procedure Act, and it is again decided as follows, without examining the prosecutor's argument of unfair sentencing, on the grounds of ex officio reversal.
[Discied reasoning of the judgment] Criminal facts and summary of evidence recognized by the court is the same as that of the judgment below, and thus, they are quoted in accordance with Article 369 of the Criminal Procedure Act.