A. Under the proviso of Article 62(1) of the Criminal Act, the Defendant committed the instant crime on March 5, 2009 and on May 2009, when three years have not passed since he was sentenced to imprisonment of two years and a fine of five million won for fraud, etc. at the Seoul Central District Court on February 9, 2007, and was committed on March 5, 2009, and on May 1, 2009. However, the lower court sentenced the Defendant to a suspension of execution for a period of one year and 40 hours for a prison term of four months, which affected the conclusion of the judgment. Thus, the lower court erred by misapprehending the legal doctrine, which affected the conclusion of the judgment.

B. The sentence imposed by the court below on the grounds that the sentence of unfair sentencing (two months of imprisonment, one year of suspended execution, one year of community service, 40 hours) is too uneasible and unfair.

2. Judgment on the misapprehension of the legal principle of prosecutor

A. Article 35(1) of the Criminal Act provides, “A person who was sentenced to imprisonment without prison labor or a heavier punishment and commits a crime equivalent to imprisonment without prison labor or a heavier punishment within three years after the execution of the sentence is completed or exempted, shall be punished as a repeated crime.” Even if a person was sentenced to imprisonment without prison labor or a heavier punishment and commits a crime equivalent to imprisonment without prison labor or a heavier punishment within three years after the execution of the sentence is completed or exempted, if the sentence becomes invalidated due to general amnesty, the sentence cannot be imposed as a repeated crime (see Supreme Court Decision 64Do34, Mar. 31, 1964). The same applies to cases where the sentence becomes invalidated pursuant to the Act on the Lapse, etc.

In addition, Article 62(1) provides that "in cases where a sentence of imprisonment with or without prison labor for not more than three years is to be imposed and extenuating circumstances exist, taking into account the matters specified in Article 51, the execution of the sentence may be suspended for a period of not less than one year but not more than five years: Provided, That this shall not apply in cases where a sentence is imposed for a crime committed during a period of not less than three years after the execution of the sentence was completed or exempted."