Main Issues

Even if a new crime has been committed during the period of suspension of execution, it may not be punished for aggravation of repeated crime in relation to the crime subject to suspension of execution.

Summary of Judgment

Even if a new crime has been committed during the period of suspension of execution, it may not be punished for aggravation of repeated crime in relation to the crime subject to suspension of execution.

[Reference Provisions]

Article 35 of the Criminal Act

Defendant-Appellant

Defendant

Judgment of the lower court

Seoul High Court Decision 69No159 delivered on May 13, 1969

Text

The judgment below is reversed;

Reasons

Before viewing the grounds of appeal by defense counsel, the judgment of the court of first instance, which the court below maintained ex officio, is with the following purport. In other words, the defendant recognized the fact that he was sentenced to a suspended sentence for one year at the ordinary military court meeting of 5th, 1968, which was sentenced to a prison term of imprisonment for six months, due to the crime of escaping from military service, and the defendant was sentenced to a suspended sentence for one year, and at that rate, the defendant was sentenced to a prison term of eight months in accordance with Article 35 of the Criminal Act. However, since the period of escape from military service of the defendant was from November 1, 1968 to December 5, 1968, the defendant committed a crime of escaping from military service within the suspended period of the above sentence. Thus, Article 36 (1) of the Criminal Act, which provides the requirements for punishing repeated offenders, does not include the above cases. Thus, the judgment of the court of first instance is reversed, and the judgment of the court below is not unlawful and remanded to the court below.