In light of the language and legislative intent of Article 37 of the Criminal Act, in cases where a crime for which judgment has not yet become final and conclusive cannot be ruled concurrently with the crime for which judgment has already become final and conclusive, it is reasonable to interpret that a sentence may not be imposed, or a sentence may not be mitigated or exempted in consideration of equity and equity (see, e.g., Supreme Court Decision 2009Do9948, Oct. 27, 201). According to the reasoning of the lower judgment and the record, the following facts may be revealed.

On September 8, 2016, the Defendant was sentenced to one year of imprisonment with prison labor for fraud, etc. at Suwon Franchi, and two years of suspension of execution, and the judgment was finalized on September 20, 2016 (hereinafter “first conviction”). On March 16, 2017, the Defendant was sentenced to four months of imprisonment with prison labor for fraud in the Busan District Court Branch Branch Branch of the Incheon District Court on August 11, 2017, and the judgment became final and conclusive on August 11, 2017 (hereinafter “second criminal conviction”). The crime of the second criminal offense was committed in the first criminal offense committed before the judgment becomes final and conclusive, and was sentenced to punishment by applying Article 37 of the Criminal Act, and Article 39(1) of the Criminal Act, on the ground that equity ought to be considered in cases where the crime of the second criminal offense is committed simultaneously with the crime of the first criminal offense before the judgment becomes final and conclusive.

According to the records, the crime of this case, which the court below found guilty, was committed after the judgment of the first criminal record became final and conclusive, and the crime of the second criminal record committed before the judgment of the first criminal record, which was committed before the judgment became final and conclusive, was not judged at the same time at the same time, and thus, the punishment shall not be imposed, or the punishment shall not be mitigated or remitted in consideration of equity in cases where it is judged concurrently with the crime of the second criminal record pursuant to Article 39(1) of the Criminal Act.

Therefore, the court below is justified in determining the punishment of the defendant without considering the second criminal offense in relation to the instant crime.

The latter part of Article 37 of the Criminal Act does not err by misapprehending the legal principles on the application of Article 39(1).

The Defendant’s final appeal is dismissed as it is without merit.