① In the case of a discretionary mitigation, the Criminal Act states that “a punishment shall be mitigated” under the language and text, and in the case of a voluntary mitigation, the term “a punishment may be mitigated” as in the language and text, as in the case of a discretionary mitigation, includes the meaning that “a punishment may be mitigated.” The term “may be mitigated.” In light of the meaning of the language and text, “a punishment may not be mitigated or mitigated according to the circumstances, etc. in the case of a voluntary mitigation, etc.” In light of the meaning of the language and text, legislators are allowed to ensure that the punishment may not be mitigated or mitigated according to the circumstances, etc., and that power or discretion may be granted to judges. Such interpretation can be understood not only by nature, but also by anyone who is close to the use of daily language. As long as it conforms to the legislative text and legislative intent, insofar as it does not constitute an interpretation that is not permitted under the principle of no punishment without law

Meanwhile, Article 55(1)3 of the Criminal Act provides for the method of statutory mitigation according to the type of punishment. Article 55(1)3 of the Criminal Act provides that “When a limited imprisonment or limited imprisonment without prison labor is to be mitigated, it shall be limited to 1/2 of the term of the punishment.” As such, in the case of mitigation of a limited imprisonment, it is clear in the text of the Act that the term “short-term” or “long-term” rather than mitigation of one half of either “short-term” or “long-term”, i.e., mitigation of both the long-term and short-term punishment to 1/2. Since the applicable sentence is the final standard for sentencing, its scope is strictly determined in accordance with Acts, and unless there is a separate express provision, there is no reason for mitigation of other nature, which does not fall under the reason for aggravated or mitigated as stipulated in Article 56 of the Criminal Act. Therefore, as stipulated in Article 55(1)3 of the Criminal Act, it cannot be acknowledged that both the long-term and long-term mitigation method and the minimum term should not be mitigated to either one half or one half of the minimum mitigation.

② Legal mitigation grounds are most relevant to the elements for establishment of a crime, such as nature constituting constituent elements, illegality, and responsibility, or to the degree of illegality or infringement of legal interests and interests. The legislators set important matters related to the establishment and punishment of a crime as legal mitigation requirements, and set the relevant requirements generally have influence or importance on the determination of the scope of punishment, by comprehensively taking into account the impact or importance of the establishment of a crime or the determination of the scope of punishment into account.

As above, the legal effect should also be clearly distinguishable in light of the purport that the grounds for the necessary mitigation are separately stipulated in the grounds for the discretionary mitigation.

[Concurring Opinion by Justice Lee Ki-taik] Voluntary mitigation should be newly interpreted as follows (hereinafter “new interpretation theory”).

The Majority Opinion argues that it is reasonable to interpret the meaning “....” as “a discretion or authority that may either be discretion or not,” in light of the language and text, but the phrase “may be,” as the context requires, includes various meanings, such as drilling, ability, possibility, permission, etc., but the word “locked or real possibility.”

As such, insofar as the meaning of “may....” is interpreted differently, it shall be interpreted to be consistent with the legislative intent as much as possible. The term “may......” means that both “the scope of a case where mitigation is performed” and “the scope of a case where mitigation is not performed” may be determined across the scope of “where mitigation is not performed.” In other words, the applicable sentences should be determined by adding up the two cases, taking into account that both cases are possible. As such, the scope between the upper limit and the lower limit of a scope where mitigation is not performed becomes the applicable range of voluntary mitigation. It can be understood as simply that the lower limit of statutory punishment is mitigated.

The method of discretionary mitigation according to a new interpretation is that the sum of the areas to be mitigated and the areas to be mitigated without room for a judge’s discretion is “reasonablely determined” as the applicable range, and accordingly, the applicable range is the upper limit and the lower limit of the mitigated range. As a result, the same conclusion is that the lower limit of the statutory penalty is reduced to one half only.

1. Case summary and key issue

A. The Defendant was prosecuted on December 23, 2016 for the charge of assaulting Nonindicted 1 and attempted special injury, which read, “A knife Nonindicted 2’s chest, knife, which is a dangerous object on the same day, knife, knife, the victim Nonindicted 2, who was pushed the Defendant’s hand on his hand, but knifeed the Defendant’s hand, so that the victim Nonindicted 2 could tear the Defendant’s clothes and attempted to do so.”

The first instance court found the Defendant guilty by applying Article 260(1) of the Criminal Act with respect to the crime of assault against the Defendant among the facts charged above, and thereby, convicted him by applying Article 258-2(3) and (1) and Article 257(1) of the Criminal Act with respect to attempted special injury. The statutory punishment of assault by the first instance court chosen is “a term of not more than two years” and the statutory punishment of attempted special injury is “a term of not less than one year but not more than ten years” and the statutory punishment of the crime of attempted special injury is “a term of imprisonment”. In addition, the first instance court mitigated the crime of attempted special injury in accordance with Articles 25(2) and 55(1)3 of the Criminal Act (the term of punishment of attempted special injury was more than 6 months but not more than 5 years), and subsequently, sentenced the Defendant to imprisonment with prison labor for a period of not more than 1/2 of the maximum term of imprisonment for a term of not more than 2 years and not more than 2 years (7 years and less than 7 years).

The Defendant appealed against the judgment of the first instance on the grounds of unfair sentencing. The lower court dismissed the Defendant’s appeal.

B. Article 25(2) of the Criminal Act provides that “The punishment of an attempted crime may be mitigated than that of an attempted crime” and that “the punishment may be mitigated” as above is a voluntary mitigation. When a reason for voluntary mitigation is recognized, the Supreme Court held that “The court below does not err by failing to render legal mitigation for the reason for voluntary mitigation” (see, e.g., Supreme Court Decisions 91Do985, Jun. 11, 1991; 2005Do6120, Sept. 29, 2005; 2014Do15131, Feb. 12, 2015). If a reason for voluntary mitigation exists, it is the court’s discretionary discretion to determine whether to reduce the punishment even if a reason for voluntary mitigation exists, it is both the upper limit of the term of punishment under Article 5(1)3 and 1/201 of the Criminal Act.

However, there is a question that it is unreasonable for the court to determine the discretionary mitigation when it recognizes the reason for voluntary mitigation. In addition, it is not reasonable to reduce both the upper and lower limits of statutory punishment by 1/2 at the time of voluntary mitigation. Specifically, it is erroneous for the first instance court maintained by the court below to reduce both the upper and lower limits of statutory punishment by 1/2 at the time of attempted mitigation in accordance with Article 25(2) of the Criminal Act with regard to the crime of attempted special injury under Article 25(2) of the Criminal Act. Therefore, the issue of this case is whether the current interpretation of the discretionary mitigation is appropriate.

2. The meaning of voluntary mitigation;

Determination of a sentence is classified into levels, such as confirmation of a statutory penalty, confirmation of a sentence to be imposed, and determination of a sentence. Judges shall determine a sentence by taking into account the conditions of sentencing only within the range of the applicable sentences formed through the aggravation and mitigation of a punishment in the statutory penalty (see Supreme Court Decision 2006Do8376, Sept. 11, 2008, etc.).

Article 25 of the Criminal Act provides that an attempted crime shall be punished if the commission of a crime does not commence and the commission of the crime does not occur or if the commission of the crime does not occur (Article 25(1)), and the punishment of an attempted crime may be mitigated than that of a prison offender (Article 25(2) of the Criminal Act). As a matter of law, mitigation of a sentence pursuant to Article 25(2) of the Criminal Act is distinguishable from that of a discretionary mitigation (Article 53 of the Criminal Act). With regard to statutory mitigation, Article 5(1) of the Criminal Act provides for a method of mitigation according to the type of punishment. As to statutory mitigation, the Criminal Act and special Acts that stipulate that statutory mitigation shall be provided separately and specifically in cases where the cause for mitigation is recognized. Such mitigation provisions stipulate that “a sentence may be mitigated” or “a sentence may be mitigated” under the statutory text, and where “a sentence” is expressed as a “voluntary mitigation”, it constitutes discretionary mitigation pursuant to Article 25(2) of the Criminal Act.

In the case of a necessary mitigation, if the existence of the grounds for mitigation is recognized, it must be deemed that the statutory mitigation under Article 55(1) of the Criminal Act is required; in the case of a voluntary mitigation, even if the existence of the grounds for mitigation is recognized, a judge may render legal mitigation under Article 55(1) of the Criminal Act; and even if the existence of the grounds for mitigation is recognized, a judge may not render legal mitigation under Article 55(1) of the Criminal Act. Furthermore, as long as the existence of the grounds for voluntary mitigation is recognized and a judge grants legal mitigation on the basis of imprisonment, both the upper and lower limits pursuant to Article 55(1)3 of the Criminal Act are to be reduced by 1/2. The interpretation of the

A. The Criminal Act specifically provides the methods, contents and reasons for statutory mitigation, and its meaning is clear.

The Criminal Act determines the statutory penalty corresponding to an act constituting the constituent elements of a crime, and determines the final applicable sentences through statutory aggravated, mitigated, and discretionary mitigation. In other words, the applicable sentences are the result of the statutory application of judges based on statutory statutory provisions. While discretionary mitigation is an exclusive mitigation of punishment by judges at the discretion of judges, statutory mitigation is a mitigation of punishment in a case where the grounds for mitigation prescribed by the Criminal Act are recognized, and the method of statutory mitigation or mitigation is in accordance with Article 55 of the Criminal Act depending on the type of punishment. Statutory mitigation is distinguishable from statutory mitigation, even if the existence of the grounds for mitigation or mitigation is recognized if it is recognized that there exists the existence of the grounds for mitigation or mitigation, which is to be recognized, the statutory mitigation may be mitigated, and if it is determined that mitigation or exemption of punishment may be granted, either of the mitigation of punishment or exemption of punishment may be selected.

Specifically, the necessary grounds for reduction of or exemption from punishment prescribed by the Criminal Act are those for attempted punishment (Article 26), respective rules concerning self-denunciation at the stage of preparation and conspiracy (Articles 90, 101, 111(3), 120, 175, and 213), perjury, and confession and self-denunciation (Articles 153, 154, and 157), the relationship between the principal offender and the principal offender (Article 365(2)). The necessary grounds for mitigation of punishment are those for the deaf and mute (Article 11), 32(2). Voluntary reduction of punishment is an excessive defense (Article 21(3)), 22(3) and emergency evacuation (Article 22(3)), 23(2) and 15(2) of the Criminal Act (Article 365(2) of the Criminal Act), and Article 365(3) of the Criminal Act (Article 4) are applicable to voluntary reduction of or exemption from punishment.

B. In light of the principle of no punishment without law, the interpretation of the current precedent and practice regarding discretionary mitigation is faithful to the legal text and accords with the system of criminal law.

The principle of no punishment without the law requires that crimes and punishments be prescribed by law in order to protect individual freedom and rights from the arbitrary exercise of the State’s penal authority. In light of such purport, the interpretation of penal provisions shall be strict, and the interpretation of penal provisions in a direction unfavorable to the defendant beyond the possible meaning of the language and text shall not be permitted in accordance with prohibition of extended interpretation, which is the content of the principle of no punishment without the law (see, e.g., Supreme Court en banc Decision 2015Do17847, Mar. 10, 2016). When interpreting statutes, the method of systematic and logical interpretation may be used taking into account the legislative intent and purpose, the history of enactment and amendment, harmony with the overall legal order, and relationship with other Acts and subordinate statutes. However, if the language and text itself consists of relatively clear concepts, such interpretation method in principle is unnecessary or limited (see Supreme Court Decision 2015Do835, Dec. 21, 2017).

In the case of a discretionary mitigation, the Criminal Act explicitly states that “a punishment shall be mitigated.” In the case of a discretionary mitigation, as in the case of a discretionary mitigation, the language and text stipulate that “a punishment may be mitigated.” The term “may be mitigated.” The term includes the meaning that “it may not be mitigated.” In light of the meaning of the language and text, the term “may be mitigated or mitigated according to the circumstances, etc. in the case of a voluntary mitigation, etc.” means that the legislators may not reduce or mitigate the punishment in accordance with the principle of no punishment without law, and give a judge the power or discretion. Such interpretation can be understood not only by nature in the literal context, but also by anyone who is close to the use of daily language. As long as it conforms to the legislative text and legislative intent, insofar as it does not constitute an analogical interpretation that is not permitted under the principle of no punishment without law.

Meanwhile, Article 55(1)3 of the Criminal Act provides for the method of statutory mitigation according to the type of punishment. Article 55(1)3 of the Criminal Act provides that “When a limited imprisonment or limited imprisonment without prison labor is to be mitigated, it shall be reduced by 1/2 of the term of the punishment.” As such, in the case of mitigation of a limited imprisonment, it is clear in the text of the Act that the term “short-term” or “long-term” rather than mitigation by 1/2 of either “short-term” or “long-term” means mitigation by 1/2 of both the long-term and short-term punishment. Since the applicable sentence is the final standard for sentencing, the applicable sentence is strictly determined in accordance with the law, and unless there is a separate express provision, the scope of mitigation cannot be recognized as a reason for mitigation other than that listed in Article 56 of the Criminal Act (see Supreme Court en banc Decision 2017Do14609, Apr. 18, 2019).

C. The Criminal Act separates voluntary mitigation and necessary mitigation, and the case law and practice should clarify the distinction between the two.

The above statutory mitigation grounds are most related to the elements for establishment of a crime, such as constituting constituent elements, illegality, and responsibility, or to the degree of illegality or the degree of infringement of legal interests and interests. The legislators set the important matters related to the establishment and punishment of a crime as the elements for statutory mitigation, and set the relevant requirements generally have influence or importance on the determination of the scope of punishment, by comprehensively taking into account the impact or importance of the establishment of a crime or the scope of punishment.

As above, the legal effect should also be clearly distinguished in light of the purport of the provision on the grounds for statutory mitigation as seen earlier, in view of the fact that the statutory effect of a crime is separately stipulated. For instance, an attempted crime which started commission of a crime but did not reach the completion of a crime due to external circumstances should be voluntarily mitigated, and the legal effect should clearly be clearly distinguishable according to the purport of the provision by distinguishing between the attempted crime which started commission of a crime and voluntarily ceases to exist before the completion of a crime and the attempted crime which prevented the occurrence of a consequence from occurring before the completion of a crime from requisite mitigation. In order to realize illegality, where the commission of a crime was committed to cause danger to infringement of legal interests by itself, but there is no change between the offender and the offender’s attempt to lawfully return to legal effect (Attempted crime), but there is no change in the external factor, but there is a big difference between the legal assessment on the case where there is no outcome of infringement of legal interests as an external factor. According to the current practice and precedents, in the case of attempted crime, the legislative limit and minimum statutory penalty should not be reduced by one half or one-half minimum limit of the judge’s.

D. If it is not necessary to lower the lower limit of the applicable sentence, it cannot be deemed that there is no need to voluntarily reduce the applicable sentence.

The Criminal Act provides, with respect to the order of application of punishment, the aggravated punishment under each specific provision, the aggravated punishment under Article 34(2), the aggravation of repeated crimes, the statutory mitigation, the aggravation of concurrent crimes, the aggravation of discretionary mitigation, and the discretionary mitigation order (Article 56), and the applicable punishment is computed through the procedures of aggravated and mitigated punishment according to such order (Article 56). Voluntary mitigation is a kind of statutory mitigation where the relevant grounds for mitigation are acknowledged as the existence of the relevant grounds for mitigation, it is reasonable to independently determine the applicable punishment in consideration of the relevant grounds for mitigation, such as mental and physical disability, attempted punishment, and self-denunciation, or influence on the crime committed in an unlawful manner or as a result, etc.: Provided, That in order to determine whether the relevant grounds for voluntary mitigation are a certain degree of influence on the illegal act or result of the relevant crime, consideration of other factors for sentencing is inevitable.

In addition, a judge’s determination of discretionary mitigation of punishment by taking account of the sentencing conditions against the defendant in the course of determining the applicable sentencing may not be deemed to be erroneous in legal and logical sense. In other words, the determination of punishment, based on the statutory penalty, is a process of choosing the type of punishment, adding or reducing it, and then determining specific sentencing within the scope of the applicable sentencing. Statutory mitigation is stipulated in Article 55, along with the conditions for sentencing (Article 51), voluntary mitigation (Article 52), voluntary mitigation (Article 53), selective mitigation (Article 54), selective mitigation (Article 56), and the order of mitigation (Article 56). In order to determine discretionary mitigation of punishment, it is difficult for a judge to take into account whether or not to grant a discretionary mitigation of punishment without taking into account whether or not to grant a discretionary mitigation of punishment to a judge, such as discretionary mitigation of punishment, according to the statutory mitigation of punishment, it is difficult for a judge to take into account whether or not to grant a discretionary mitigation of punishment to a judge.

In practice, even if there exists a reason for voluntary mitigation in practice, the method has been widely used either to lower the lower limit of the applicable sentencing or not to reduce the discretionary mitigation. However, such practical practice does not mean to determine whether to grant discretionary mitigation after having first decided the applicable sentencing. As seen earlier, insofar as legislators grant discretionary mitigation to the judge’s discretion or authority, judges cannot inevitably take into account other sentencing conditions than the reason for voluntary mitigation, and can be said to have reached the margin of a certain degree of sentencing in the process of determining whether to grant discretionary mitigation. Accordingly, in practice, unless there is a need to lower the lower limit of the applicable sentencing in the process of such determination, it can be understood to the effect that there is no benefit from voluntary mitigation, and thus, it is sufficient to consider it as the sentencing or sentencing conditions, which are the sentencing guidelines. If there is no need to lower the lower limit of the applicable sentencing, it does not necessarily mean that there is no need to grant voluntary mitigation.

E. Until a sentence is determined after conviction, a large amount of discretion is given to a judge, and the discretion of a judge in relation to discretionary mitigation cannot be deemed unfair as one of them.

Article 54 of the Criminal Act provides that a court shall decide on the type of punishment to be applied to a defendant (Article 54 of the Criminal Act). The most of the penal provisions except for the concurrent crimes that only stipulate the death penalty (Article 93 of the Criminal Act) include two or more principal penalties among the type of punishment (a death penalty, life imprisonment, imprisonment without prison labor, limited term, imprisonment without prison labor, imprisonment without prison labor, suspension of qualifications, suspension of qualifications, punishment, penal detention, and minor fine) provided for in subparagraphs 1 through 8 of Article 41 of the Criminal Act, and grants a judge with the authority to choose the most suitable type of punishment for the relevant defendant. The legislators prescribed the sentence concerning the punishment of an individual crime, and then decided the sentence within the scope of the punishment. This is from the choice of a principal sentence that cannot be determined in advance by legislators, taking into account all the sentencing conditions, so that a judge has the authority to choose the most suitable type of punishment.

Furthermore, a judge may reduce the punishment when there are grounds for considering the circumstances of the crime with regard to the punishment that has been subject to statutory aggravated and mitigated mitigation (Article 53 of the Criminal Act). This is unfavorable to judicial mitigation, discretionary mitigation, or extenuating circumstances. It is a final mitigation when a sentence which is lower than the applicable punishment is to be imposed even after the statutory mitigation is fully mitigated (see, e.g., Supreme Court Decision 91Do985, Jun. 11, 1991); and where the applicable punishment which has completed statutory aggravated and mitigated punishment or statutory mitigation is excessively harsh, a judge functions as a device for correcting it.

Finally, judges will consider all sentencing conditions within the applicable sentencing range and determine sentence by referring to the sentencing guidelines of the Sentencing Committee.

As can be seen, in light of the specific sentencing process conducted by a judge to determine a sentence after a judge was found guilty of facts constituting an offense, it can be seen that a judge has given a large discretion. This is an option for sentencing with objective, reasonable, and concrete feasibility by fully taking into account all individual sentencing conditions for each individual case starting from the option of a sentence and ending up to the decision of a sentence. Considering such a large number of discretion given to a judge, it cannot be deemed unreasonable to interpret that a judge has the authority or discretion to decide whether to grant mitigation or not to have discretion to a judge. The need or method of appropriate control over such discretion of a judge is a separate issue.

F. Legal effects by discretionary mitigation need not be uniformly determined.

Even if the existence of a reason for voluntary mitigation is recognized, it would rather go against the concept of justice to grant statutory mitigation. Even if an attempted crime that does not take place, there is a case where the result is almost the same as the existing one (e.g., in the murder crime, where the victim did not reach the death but has fallen short of a long-term mixed status or where a plant is simple) or where it is inappropriate to grant statutory mitigation to a person with mental or physical disability, such as cases where it is acknowledged that the reason for voluntary mitigation is recognized, but it is reasonable not to grant such mitigation. In other words, the Criminal Act provides that "the punishment may be mitigated" means that even if a reason for voluntary mitigation is recognized, there is both cases where it is necessary and unnecessary, and thus, there is no need to grant statutory mitigation to a judge without taking into account the authority to determine or grant a variety of legal discretion.

3. Resolution of the instant case

A. On the grounds stated in its reasoning, the lower court recognized all guilty of the crime of assault and the crime of attempted special injury, and maintained the first instance judgment, which determined the punishment through the aggravation of concurrent offenders, after reducing both the upper limit and lower limit of the term of punishment to 1/2 pursuant to Article 55(1)3 of the Criminal Act, while mitigation of attempted special injury pursuant to Article 25(2) of the Criminal Act. In light of the aforementioned legal principles, the lower court’s aforementioned measures are lawful.

B. Meanwhile, the argument that the lower court’s judgment on sentencing did not reflect the agreement with the victim Nonindicted 1 constitutes an allegation of unfair sentencing. However, under Article 383 Subparag. 4 of the Criminal Procedure Act, an appeal on the ground of unfair sentencing is allowed only in the case where death penalty, life imprisonment, or imprisonment with or without labor for not less than ten years is imposed. In this case where the Defendant was sentenced to a more minor sentence, the argument that the sentence is too unreasonable or that the probation and community service order are mitigated or mitigated is not a legitimate ground for

4. Conclusion

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except a separate opinion by Justice Lee Ki-taik, and there is a supplementary opinion by Justice Lee Ki-taik as to the separate opinion.

5. The separate opinion by Justice Lee Ki-taik is as follows.

A. The following is the form of a Korean criminal trial.

(1) The same crime is committed and the grounds for aggravation or reduction of punishment is also different from each other against the same Defendants.

(2) In the judgment of conviction, the sentence which is the first sentence and the subsequent sentence shall be determined.

(3) The punishment of a defendant for the same crime is lawful even from 3 to 30 years, and is also lawful from 4.5 to 3.9.

(4) In the event that multiple concurrent crimes are subject to heavy aggravation of punishment among different crimes, the question of whether to increase the penalty provided for in any crime depends upon the discretion of the judge.

(5) An appeal may be lodged on the grounds of unfair sentencing even in cases where a sentence is set at the lower limit of the applicable sentences.

(6) In order to accept the grounds for appeal of unfair sentencing and to impose a minor sentence than that of the first instance trial, the applicable parts of the statutes to determine the applicable sentences need not be amended.

As above (1) through (6) above, the current criminal trial appearance appears even though the mitigation of discretionary mitigation under Article 53 of the Criminal Act was not applied, and it shall be deemed unlawful rather than to the extent that it is not desirable. Nevertheless, the majority opinion is continuing such a trial, and the separate opinion is that it is a defect in the correct trial. hereinafter the majority opinion confirms the problems arising from the current practice of discretionary mitigation, such as the majority opinion, and presents a solution therefor.

B. In practice, the Criminal Act provides that “the punishment may be mitigated.” As a ground for mitigation of punishment, it is considered that the court has granted a judge with the power or discretion to reduce or not to reduce the above language and text. In the case of voluntary mitigation due to such power or discretion, the applicable sentences exist in two forms. In the case of voluntary mitigation of punishment, under Articles 258-2(3) and (1) and 257(1) of the Criminal Act, the crime of attempted special injury under Articles 25(2) and 55(1)3 of the Criminal Act (one to ten years of imprisonment) is to be mitigated pursuant to Articles 25(2) and 55(1)3 of the Criminal Act, the applicable sentences should be determined within the scope of imprisonment with prison labor for not less than six months, and where the sentence is not mitigated, the applicable sentences should be determined within the scope of imprisonment with prison labor for not more than ten years, and the applicable sentences should be determined within the scope of discretionary mitigation of punishment by a judge.

A new interpretation theory based on the correct understanding of discretionary mitigation as alleged in the Concurring Opinion (hereinafter “new interpretation theory”) is as follows. In the case of attempted special injury, Article 25(2) of the Criminal Act provides that a sentence may be imposed on both the scope of “one to ten years of imprisonment” mitigated under Article 55(1)3 of the Criminal Act and “one to ten years of imprisonment”, which does not provide for mitigation. This means that the sentence may be imposed on both the scope of “one to six years of imprisonment” under Article 55(1)3 of the Criminal Act and “one to ten years of imprisonment.” Ultimately, the maximum statutory penalty means that the applicable sentence is determined as “one to six years of imprisonment” in the sum of two areas. As a result, the maximum penalty is set at the same conclusion that is reduced to one half of the minimum penalty, and this does not mean that the upper limit is not to be mitigated as a result of the combination of the two areas.

From the point of view of the occurrence of legal effect due to voluntary mitigation, since the present practice is the choice of one of the two sentences, it can be said that the choice discretion exists, and the new interpretation theory always leads to the same legal effect (the applicable form), so it can be said that the “reasonable confirmation” can be said to be “reasonable confirmation”.

Meanwhile, Article 10(2) of the former Criminal Act, which was amended by Act No. 15982, Dec. 18, 2018, stipulated that the punishment should be mitigated for a person with mental disability; however, the amendment of the aforementioned Act, which led to the amendment of the Act, has been changed to voluntary mitigation of punishment for a person with mental disability. The claim for mental disability and the determination thereof are frequently problematic issues in practice, and the importance of interpretation of discretionary mitigation has increased due to the amendment of the above Criminal Act.

C. The current practice regarding voluntary mitigation has always been statutory mitigation, but where there exist grounds for voluntary mitigation, “where it is necessary to lower the lower limit of the applicable sentences, or where there exist reasons for voluntary mitigation, it may not be mitigated.” From the perspective of the crime committed through attempted special injury, two types of sentences, such as “a judge’s imprisonment with prison labor for not less than six months but not more than five years” and “a person with prison labor for not less than one year but not more than ten years,” depending on whether to reduce the applicable sentences as seen earlier. However, since the sentence is lower than the applicable sentences, judges have to reduce the applicable sentences only “where it is necessary to lower the applicable sentences” because the sentence is lower than the applicable sentences, a judge has to first determine the applicable sentences and then has to reduce the sentence more than one year, and if necessary to lower the applicable sentences in the above precedents, it means that it is desirable that the following issues should be considered to maintain the applicable sentences prior to the sentencing, and it means that it is desirable that the sentencing should be determined more than the applicable sentences.

1) The current practice does not reflect the actual decision-making process of judges in charge of criminal trials as it is.

In the case of attempted special injury, according to the current practice, two sentences of imprisonment with prison labor for not less than one year but not more than ten years and sentences of imprisonment for not less than six months but not more than five years are possible. The present practice is: (a) the sentence of imprisonment with prison labor for not less than six months but not more than ten years is determined; and (b) the sentence of imprisonment is determined within the scope of not more than ten years; and (c) where the sentence of imprisonment with prison labor falls under any of the above two sentences, the judgment is written. According to the written judgment, it consists of two stages of voluntary decision-making and decision-making of sentence. However, this differs not only from the decision-making process of judges in charge of actual criminal trials but also from our daily life.

In our daily life, if one of the scope of “30,00 or KRW 700,00” or “50,000 or KRW 1,000,00,00” is selected when purchasing certain goods, it would be the same that if a reasonable person is able to purchase goods within the scope of “30,000 or KRW 1,000,00,000,000,000,000,000,000 or KRW 1,000,000,000,000,000 or KRW 1,000,000,000,000 or KRW 2,00,000,00,000,000 or KRW 2,000,00,00,00,000,00,000 or KRW 3,00,00,00,00,00,00,00.

However, the new interpretation theory sets forth the range of mitigation of statutory penalty to one half only, by the applicable sentences, a sentence shall be determined within the total range of both the above two areas. This is consistent with the decision-making process of a judge in practice.

2) The present practice is against the judgment structure of a trial and is in violation of Article 56 of the Criminal Act.

The structure of judgment is different from that of a judge. A judge’s judgment structure is different from the judgment structure of a judge. A judgment structure is derived from a judge’s assertion and facts that may affect the conclusion of a judgment in accordance with the order of legal, logical, and systematic judgment. In other words, the conclusion is automatically derived from the conclusion of a judgment. Here, the argument and facts that may affect the conclusion in this context are “legal requirements”, the application of the law is “legal effect”, and the order of legal, logical, and systematic judgment is “judgment structure.” The process of deriving legal effects corresponding to the legal requirements is that the judgment structure is a trial. It is not permissible to change or revise the order of judgment on the legal requirements prescribed in the judgment structure. It is not permissible to complete a judgment on the cause of a claim and defense in a civil case, and make a judgment on the re-claim. Moreover, the judgment on the cause of a claim or defense cannot be modified retroactively depending on whatever the decision on the re-claim cannot be modified. Furthermore, it is no more permissible to permit a new judgment on the cause of a claim or defense after setting the order.

In a criminal trial, if the facts constituting an offense are acknowledged as a result of the examination of evidence, a judge shall determine the sentence through a judgment of sentencing within the applicable sentencing range after determining the applicable applicable sentences through the process of the examination of evidence. The application of statutes is first to determine the provisions applicable to the relevant facts constituting an offense, and after confirming the statutory penalty, pursuant to Article 56 of the Criminal Act, Article 34(2) of the Criminal Act, the sentence shall be aggravated and mitigated in the order of "6. Aggravation of concurrent crimes as of May 2, 199," among the aggravated punishment under Article 34(2) of the same Act. Within the applicable sentencing range fixed as above, judges shall determine the sentence by taking into account all the sentencing conditions against the accused. Such a process is a structure to determine the sentence which can be considered as the final conclusion of the criminal trial, and thus, failure to observe or reverse the applicable sentence cannot be permitted. However, at present, voluntary mitigation of sentence is inconsistent with the order of statutory mitigation and discretionary mitigation of sentence, and thus, it does not conform with the order of statutory mitigation and discretionary mitigation of sentence.

However, according to a new interpretation theory, there is no problem of deciding or revising the decision of statutory mitigation according to the sentence contrary to the judgment structure of criminal trial, since it is always recognized the legal effect of the change of the applicable sentences at all times when a reason for discretionary mitigation is recognized.

3) In practice, the current practice is against the principle of no punishment without law in that it is unclear that the applicable sentence becomes unclear if the ground for voluntary mitigation is recognized.

Article 12(1) of the Constitution of the Republic of Korea provides that the principle of no crime without the law shall be the core contents of the provision of a law in the form of a formal meaning established by the legislative body. Furthermore, even if a law provides for a formal meaning of a law, it is possible for anyone to anticipate what the legal provision intends to punish and what punishment is, and accordingly, to make a decision on one’s own act (see Supreme Court Decision 2003Do3600, Nov. 14, 2003). The principle of no crime without the law, as well as the principle of no crime without the law, shall be clearly defined by the law. Judges shall decide a sentence within the scope of a punishment derived from the aggravated and mitigated punishment that is derived from the statutory punishment prescribed by the penal provision, so matters concerning the aggravation and mitigation of punishment with regard to the addition of punishment with regard to the derived punishment should be clearly defined by the law as well as the provisions on the statutory punishment, and the interpretation thereof should also be clearly defined so as to ensure the possibility of punishment.

However, if the application of the grounds for mitigation of punishment is determined at the discretion of judges, even though it has been clearly stated through trial as to the existence of the grounds for voluntary mitigation of punishment, it would go against the principle of clarity, which is virtually derived from the principle of no punishment without the law. If the grounds for mitigation of punishment are prescribed as the grounds for mitigation of punishment and the grounds for mitigation of punishment are recognized, it would in fact be impossible for the defendant to know the scope of punishment for his/her act and open a room for judges to intervene in the determination of the applicable punishment, and would be contrary to the principle of no punishment without the law. In the context of the crime of attempted special injury, the defendant would be under unstable circumstances where he/she can not be punished by imprisonment for not less than 1 year and not more than 10 years or imprisonment for not more than 6 months and not more than 5 years, and if he/she fails to know what kind of punishment would be imposed in accordance with Article 342 of the Criminal Act and Article 333 of the Criminal Act (the same shall apply to the case of voluntary mitigation of punishment for three or more years).

Meanwhile, in the context of the crime of attempted special injury, the scope of the applicable sentences is “one to ten years of imprisonment.” On the other hand, if an attempted mitigation is conducted, the scope of the applicable sentences would be “one to six months of imprisonment” and “one year of imprisonment.” Considering that the applicable sentences refer to the final range within which the sentence can be determined as a result of aggravated or mitigated punishment, the applicable sentences shall be construed as including “one to six months of imprisonment”, which is the area in which the sentence may be sentenced as above. Nevertheless, according to the current practice, the applicable sentences, which are the final criteria for sentencing, may not be subject to voluntary mitigation according to the judge’s discretion, and in such a case, the part of the applicable sentences should be excluded from “one to six years of imprisonment” within the scope of the applicable sentences, and at the same time, it is unfair against the principle of no punishment without the law.

As seen earlier, while the decision of sentencing is a matter of application of the law, the part of the decision of sentencing through discretionary mitigation is a matter of sentencing. Voluntary mitigation is one of the legal mitigations that affect the decision of sentencing, not a matter of sentencing. However, practical practice is not a matter of application of the law, but a matter of error that considers discretionary mitigation as a matter of sentencing as a matter of practical punishment, and the result is appearing in violation of the principle of no punishment without law, such as the foregoing.

However, according to a new interpretation theory, since one punishment is clearly determined by the reasons for voluntary mitigation, it guarantees the possibility of prediction of punishment to the defendant and accords with the principle of no punishment without law.

4) In practice, there is a difference in the applicable sentences at the discretion of the judge against the Defendants who committed the same crime, which may constitute discrimination without reasonable grounds.

This interpretation of the scope of punishment itself differs according to the judge’s discretion even though the crime was committed, it is extremely difficult to accept from the perspective of the general public. Moreover, recognizing other legal effects at the discretion of a judge even though the same legal requirement has been met is contrary to the general principles of law or the principle of no punishment without the law. For example, in a case where two defendants are convicted of attempted special injury in the same court on the same day, a judge is found guilty of the defendant as a crime of attempted special injury, and the sentence is between June and 5 by discretionary mitigation, and as for the other defendants, “a person is punished by imprisonment with prison labor for not less than one year and 10 years because he/she is deemed to have attempted, but does not voluntarily reduced,” the difference between punishment and imprisonment for not more than 1 year and 10 years, and it can be accepted as the same principle of no punishment without the law.

It is reasonable to apply the same sentence as a legal effect to the defendants who meet the same legal requirement as an attempted special injury, separate from the actual sentence depending on the specific sentencing conditions. As above, opening the possibility of the application of different sentences among the defendants who meet the same legal requirement according to the present practice at the discretion of judges is unreasonable in that it does not differ from allowing any discrimination without reasonable grounds.

Furthermore, according to Article 56 of the Criminal Act, concurrent crimes are being aggravated after statutory mitigation. However, even in cases where the crime subject to aggravated punishment is determined by comparison of punishment, the crimes subject to aggravated punishment may vary. For example, the cases of larceny (a imprisonment for not more than six years or a fine not exceeding 10 million won) under Article 329 of the Criminal Act and the crime of attempted fraud under Articles 352 and 347(1) of the Criminal Act (a fine not exceeding 10 years or a fine not exceeding 20 million won, or a fine not exceeding 20 million won), are presented, depending on whether the crime subject to aggravated punishment will be mitigated in practice, depending on whether the crime subject to aggravated punishment is mitigated or not. However, there is no reasonable explanation as to the grounds arising therefrom.

5) The phrase “may be interpreted” cannot be interpreted as granting a judge discretion or authority to decide whether to reduce the amount of punishment.

The Majority Opinion argues that it is reasonable to interpret the meaning “.....” in light of the language and text, it is reasonable to interpret the meaning as “the discretion or authority of a judge”. However, although the context requires a variety of meanings, such as drilling, ability, possibility, permission, etc., the term “may be” refers to “locked or actual possibility..” Unlike cases where one of the objects must be selected, such as permission, confiscation, etc., as the object should be permitted, it is reasonable to interpret it as meaning the discretion or authority of a judge, as stated in the Majority Opinion. It is reasonable to interpret it as meaning the discretion or authority of a judge. Furthermore, it is reasonable to interpret it in terms of feasibility, and it is reasonable to interpret it in terms of the scope including all such possibility.

Article 38(1)2 of the Criminal Act concerning concurrent crimes provides that "when the punishments specified for each crime are of the same kind, other than death penalty or imprisonment without prison labor for life or imprisonment for life, the maximum term or maximum amount for the most severe crime shall be increased by one half thereof, but shall not exceed the total of the maximum term or maximum amount of the punishments specified for each crime may be imposed concurrently, except for a minor fine and a minor fine, confiscation and confiscation may be imposed concurrently," and the proviso of the above provision provides that "a concurrent punishment may be imposed may be imposed or not," rather than for "an excessive penalty, minor fine, and confiscation and confiscation shall be imposed concurrently, rather than an aggravated penalty," it is common and practical. There is no opinion that a judge may not be imposed concurrently on the judge. In addition, Article 55(2) of the Criminal Act provides that "Where an estimated amount of compensation for losses can be reduced by 90 times again without an excessive discretion, it may be reduced by 90 times again without an excessive reduction of compensation for losses, it may be interpreted that it would be unreasonable for the Supreme Court to permit the aforementioned reduction of damages."

As above, the Majority Opinion’s assertion that the phrase “may be” under the legal text is always used, and thus does not always grant a judge the discretion or authority to him/her. In this respect, the phrase “may be voluntarily mitigated.” In interpreting the language and text, the Majority Opinion’s assertion that there was a discretion to reduce or not to reduce to a judge is deprived of its major grounds. The interpretation of the phrase and text of “may be “may be” under the Civil Act, as well as those stipulated in the general provisions of the Criminal Act, is well-founded that the core arguments in practice as to the mitigation of discretionary mitigation are not reasonable.

6) Although the current practice is at the discretion of a judge to voluntarily reduce the working level, there is no discussion on the discretionary control to appropriately exercise the discretion.

There is no theory on the illegality of administrative disposition, even if it is a deviation or abuse, if it is illegal. In the event that administrative disposition is a discretionary matter of an administrative agency, discussions are actively conducted to properly control the discretion, and the discretionary rules setting the reasonable scope and standards of discretion have been enacted, and considerable precedents have been accumulated about the deviation or abuse of discretion. There have been a lot of discussions about the sentencing discretion in the past. Furthermore, after the Sentencing was launched and the Sentencing was enforced, there has been a deep discussion about the sentencing discretion through setting the sentencing guidelines and revising the guidelines.

However, there is no discussion about the discretion or authority of the judge with regard to the discretionary mitigation of judges. Inasmuch as the scope of punishment varies depending on the degree of voluntary mitigation or not, it shall be deemed that it falls under the discretion of the judge with the most important meaning in the criminal procedure, in view of the seriousness of its effect, there is a need to discuss the rational exercise and control thereof in light of the importance of the effect. In the case of a crime committed through attempted murder under Articles 254 and 250(1) of the Criminal Act, in the same case, the attempted mitigation or not should be made according to the occurrence of injury or the degree of injury, or the case of a suspect who voluntarily surrenders to the police only when the suspect was discovered and the detention warrant was issued, there is no need to reduce the number of judges, but if the suspect voluntarily surrenders before the discovery, there is no need to discuss the criteria and scope for the proper control of discretionary mitigation, such as that it is necessary to reduce the number of judges. However, there is no discussion about the judge’s discretionary authority over discretionary mitigation or decision of criminal procedure.

Since discretionary mitigation, which is a kind of statutory mitigation, should be carried out prior to discretionary mitigation, it is not necessary to determine whether to apply it at the discretion of a judge in relation to a specific sentencing. Nevertheless, it is erroneous for the present practice to leave the discretion of a judge as to whether to reduce it according to discretionary mitigation, which is a legal ground for mitigation, at the discretion of a judge, and not to control the discretion.

However, according to a new interpretation theory, if a reason for discretionary mitigation is recognized, the legal effect is automatically determined, so it is unnecessary to discuss discretionary control over discretionary mitigation.Until now, there has been no discussion about discretionary mitigation so far, it is thought that there is no discussion about judge's decision in the same way as a new interpretation theory, including both the scope of voluntary mitigation and the scope of non-exclusive mitigation.

7) At present, practice provides theoretical grounds to justify the omission of judgment by the court on the defendant's assertion.

The Supreme Court held that "a self-denunciation is not a reason for the necessary reduction or exemption of punishment pursuant to Article 52 of the Criminal Act, since the assertion of the fact of self-denunciation is nothing more than a reason for the determination of punishment and it cannot be deemed that it constitutes a reason for the specification in the conviction under Article 323 of the Criminal Procedure Act since it does not affect the determination of punishment." (See Supreme Court Decisions 87Do945 delivered on July 7, 1987; 98Do492 delivered on April 28, 1998, etc.). In other words, the Supreme Court held that the court did not render any judgment as to the defendant's remaining reason for voluntary reduction, which interpreted that the discretionary mitigation is left at the discretion of the judge, and thus, it does not constitute an unlawful act even if the court omits the judgment as to the defendant's argument on the reason for voluntary reduction of punishment. In fact, it can be viewed that there is no need to examine whether there is a reason for voluntary reduction of punishment.

This is contrasted to the above Supreme Court Decision 2007Da19051 Decided the estimated amount of compensation for damages under Article 398(2) of the Civil Act. Although the statutory provisions are deemed to be “a reduction may be made” and “a mitigation may be made,” there is a Supreme Court decision that the amount of compensation for damages should not be reduced with respect to the estimated amount of compensation for losses is unlawful, while there is a Supreme Court decision that the discretionary mitigation has the discretion of a judge as to whether the discretionary mitigation is to be mitigated, there is a Supreme Court decision that is not unlawful even if a decision on the assertion is not made. It is difficult to readily understand that the Supreme Court’s decision on civil matters with respect to a similar language

As factors such as self-denunciation, mental retardation, and attempted punishment, representative discretionary mitigation causes a significant impact on the final sentence. In fact, the defendant or defense counsel who asserts the above reasons in the court is thought to have a considerable impact on the final sentence decision depending on the existence of the above reasons, and making efforts to prove that there is considerable amount of mitigation. However, even if the defendant success in the court, it may not take legal effect, and even if the decision is omitted or no examination is conducted, it is difficult to accept it as the defendant and defense counsel. Moreover, in the event that the defendant asserted voluntary mitigation but there is no determination thereof in the first instance judgment, it is difficult to accept it as a defendant and defense counsel. Furthermore, it is difficult to accept the defendant's defense counsel's assertion that there is no substantial obstacle to the final sentence, even though it is recognized that there is no such reason for voluntary mitigation, and further, it is difficult to accept the defendant's defense counsel's assertion that there is no substantial obstacle in the second instance court's decision without the consent of the court of first instance.

Such erroneous form of practice arises from the perception that it is the discretion of a judge as to whether to grant discretionary mitigation. However, according to a new interpretation theory, if a new ground for discretionary mitigation is recognized, the court shall render a judgment to reduce only the minimum statutory penalty by one half, and if it is not possible, it would be unlawful. Therefore, as a matter of course, the argument on the ground for discretionary mitigation falls under a statement of fact that is the reason for the increase or exemption of punishment under Article 323(2) of the Criminal Procedure Act, and the judgment on the conviction ought to be clearly stated. The new interpretation theory can correct it naturally.

Many scholars say that it is reasonable to clarify the judgment on the grounds of conviction in accordance with Article 323(2) of the Criminal Procedure Act in order to ensure the objectivity of the judgment in consideration of the parties' claims while they are at the discretion of the court, such as the current practice, with regard to discretionary mitigation. There are many practical cases that share this view.

On the other hand, even though the amendment of the Criminal Code in 2018 has changed from a necessary mitigation to a voluntary mitigation, the majority of the practical practices seems to clearly state the decision in the case where the defendant's claim of mental disability is not recognized as a mental and physical disability. This attitude of the practical practice is not only very reasonable, but also shows that the current practical problems of the voluntary mitigation are recognized as potential.

8) According to the current practice, there is a problem that is logically difficult for the defendant to explain in relation to the appeal against the judgment rendered at the lower limit of the applicable sentences that did not grant any discretionary mitigation.

In the case of the crime of attempted special injury, it is difficult to accept even if the court of the first instance wishes to sentence six months, which is the lowest sentence of imprisonment, within the scope of the punishment imposed by the defendant, which is legally limited, within the scope of the punishment to which he/she has led to a confession and attempted mitigation, but the court of the first instance has sentenced one year, which is the lowest sentence within the scope of “one to ten years of imprisonment.” In such cases, the question arises as to how the defendant who has sentenced six months of imprisonment, can file an appeal for any reason. First, there may be a view that the defendant may point out that he/she has failed to reduce attempted punishment and claim the violation of Acts and subordinate statutes as the grounds for appeal. However, as seen earlier, it is difficult to accept even if he/she asserts that a discretionary mitigation has not been imposed on the judge’s discretionary discretion and thus, it is difficult to accept the decision of the court of the first instance as grounds for appeal. However, it is unreasonable to understand that the court of the first instance did not have the minimum sentence on voluntary mitigation of punishment for reasons for lack of sentencing.

Furthermore, there is a serious inconsistency in the appellate court’s judgment. In this case, the appellate court appears to have reversed a sentence of one year sentenced to imprisonment and sentenced to six months. In this case, the appellate court may reverse the judgment of the first instance for any reason. According to the position of the judicial precedents, which is the discretion of judges, it is reasonable to reverse the judgment of the first instance on the ground of unfair sentencing inasmuch as it reverses the judgment of the first instance on the ground of violation of statutes, and the sentence of the first instance is too heavy. Considering this as a matter of legal principles or violation of laws and regulations, it is different from that of recognizing practical errors. Accordingly, in practice, the appellate court seems to reverse the judgment of the first instance on the ground of unfair sentencing in this case. However, in order to sentence six months after the reversal of the judgment of the first instance which sentenced the lower court, which did not reduce attempted punishment, the appellate court newly used the judgment to reverse the judgment of the first instance on the grounds of unfair sentencing, and thus, the appellate court’s error in the misapprehension of the judgment of the first instance is no different from the judgment.

In practice, the phrase “it is impossible to suspend the execution of a sentence under the law” is a expression based on the scope of the applicable sentences of the judgment, and this phrase is very inaccurate if it is based on the present practice regarding voluntary mitigation. If a person commits murder (a death, life imprisonment, or imprisonment with labor for more than five years) under Article 250(1) of the Criminal Act, even if the fact of self-denunciation, which is a reason for voluntary mitigation, is recognized according to the present practice, it may not be reduced, but may not be stated in the judgment without mitigation. According to such written judgment, the lower limit of the applicable sentence is five years, so it is impossible to suspend the execution of a sentence. However, it is possible to suspend the execution of a sentence when the lower limit of the applicable sentence is two years and six months, namely, it is difficult to acknowledge the suspended sentence under the law. Even if a voluntary mitigation is not granted, it is difficult to find out whether there is any legal assertion on whether it is an unreasonable sentencing or not, separately from the present written judgment, can be accepted in practice.

However, according to a new interpretation theory, there is no room for such confusion. If a ground for discretionary mitigation is recognized, the effect of changing the applicable sentences always arises, and thus, if such a ground for discretionary mitigation is not taken, it would be a violation of law, and if such measure was taken, it would be an issue of unfair sentencing. The grounds for appeal on unfair sentencing, including a suspended sentence, can be clearly known only by the written judgment on which the grounds for appeal on unfair sentencing, including a suspended sentence, are legally constituted, and it is necessary to view

9) According to the current practice, there may be a problem in which the range of applicable sentences is divided, and there may be a gap in which a sentence cannot be selected between the highest and lowest applicable sentences.

According to the current Criminal Act, the scope of imprisonment for a limited term of not less than one month but not more than 30 years may be sentenced to more than 50 years. However, under the former Criminal Act (amended by Act No. 10259, Apr. 15, 201) prior to the amendment by Act No. 10259, the statutory punishment for the crime of robbery under Article 338 of the former Criminal Act (amended by Act No. 5057, Dec. 29, 1995; the statutory punishment for a specific violent crime under Article 338 of the former Criminal Act, which was amended by Act No. 10259, is limited to imprisonment for life or for a limited term of not less than 10 years; however, if the number of a defendant is recognized, the extent of punishment varies depending on whether imprisonment for a limited term of not less than 10 years but not more than 15 years, may be sentenced to imprisonment for an aggravated term of not more than 15 years, and the issue of imprisonment for a maximum term of less than 5 years may not more than 7 years.”

However, in the case of voluntary mitigation, the new interpretation is the applicable sentencing range that reduces only the lower limit of the statutory penalty by one half. As such, there is no problem that there is a gap in sentencing because the scope of the applicable sentencing is differentiated as above.

10) The current practice is infinite to the purport that legislators have formulated a phased mitigation system.

The Criminal Code provides a system for mitigation of punishment according to illegal degree, degree of responsibility, etc., and the criminal liability is treated differently in cases where there are no grounds for mitigation (1) necessary mitigation, (2) voluntary mitigation, and (3) mitigation according to minor order.

At present, the current practice handles the same as that of a judge’s necessary mitigation in relation to voluntary mitigation at his/her discretion, or that the same is applied to cases where there is no reason for mitigation because he/she does not reduce or reduce such mitigation. To the contrary, the crime of attempted special injury is identical to the case where the applicable punishment becomes more than six months but not more than five years in the case of the former, and the latter becomes the same as the case where the imprisonment is more than one year but not more than ten years in the case of the latter, and the latter becomes the same as the case where there is no reason for mitigation. Such interpretation is made influencesing the intent of the system for mitigation under the Criminal Act and the legislative choice thereof. This interpretation consists of two statutory provisions that are divided into three categories. The Majority Opinion is clearly distinguishable from the necessary mitigation and voluntary mitigation, but it is inconsistent with its own distinction.

However, according to the new interpretation theory, the difference in the applicable sentence is clearly revealed in accordance with the reasons for mitigation. In other words, in the case of (i) an attempted special injury, imprisonment for not less than six months but not more than five years, (ii) for not less than six months but not more than ten years, and (iii) for not less than one year and not more than ten years.

11) Article 10(2) of the former Criminal Act prior to the amendment by Act No. 15982, Dec. 18, 2018 stipulated that “the act of a person who lacks the ability under the preceding paragraph due to mental disorder shall be mitigated of punishment.” Accordingly, if the defendant asserts mental disorder, he/she must make a judgment on it in the written judgment, and if he/she acknowledges mental disorder, he/she should make a statutory mitigation pursuant to Article 55 of the Criminal Act. However, Article 10(2) of the amended Criminal Act provides that “the act of a person who lacks the ability under the preceding paragraph due to mental disorder may be mitigated of punishment.” According to the current practice on voluntary mitigation, even if the defendant claims mental disorder, the court should make a significant change in the working form of mental disorder, and in other words, even if the defendant did not make a judgment on it, it is not necessary to reduce the punishment when he/she is sentenced to a lower sentence according to the sentence of mental disorder.”

However, the current practice on mental and physical disability seems to be operated in a way that is not significantly different from the time when the necessary reason for mitigation was found. Even if the defendant's claim for mental and physical disability is not accepted, the judgment on it is stated in the written judgment, and even if it is recognized as a mental and physical disability, it seems to be a substitute working-level position that legal mitigation is not intended to lower the lower limit of the applicable sentencing. Such practice is a part that is linked to a new interpretation and interpretation. The working-level form on mental and physical disability is not based on the legal and logical basis for voluntary mitigation, but is a case that shows that the practice is not based on the legal and logical basis for voluntary mitigation, and that it is a result of correct practice as it is.

(d) Voluntary mitigations must be newly interpreted as follows:

1) As seen earlier, insofar as the meaning of “may be interpreted differently,” it ought to be interpreted to be consistent with the legislative intent as much as possible. The term “may be determined” means that a sentence may be determined across both “the scope of the case where mitigation is performed” and “the scope of the case where mitigation is not performed.” In other words, considering that both cases are possible in a case where mitigation is performed and where mitigation is not performed, the applicable sentences should be determined by adding up the applicable sentences. As such, the range between the upper limit of the scope for which mitigation is not performed and the lower limit of the scope for which mitigation is to be mitigated is limited to the lower limit of the statutory punishment. A simple interpretation can be understood that this is limited to the lower limit of the statutory punishment. In short, “a sentence may be mitigated” that provides for attempted mitigation of special injury refers to a minimum of one-year imprisonment with labor for not less than six months and not more than five years, and that the term “one-year imprisonment with labor for not more than ten years” means one-year imprisonment with prison labor for which mitigation is determined within the maximum term of one-year or less than ten years.

According to a new interpretation, the method of discretionary mitigation according to a new interpretation states that the sum of the areas to be mitigated and the areas to be mitigated without room for a judge’s discretion is “reasonablely determined” as the scope of the applicable sentences, and accordingly, the scope of the applicable sentences is deemed to be the upper limit of the areas to be mitigated and the lower limit of the mitigated areas. As a result, it reaches the same conclusion as the lower limit of the statutory penalty only to be mitigated by 1/2. Although it is extremely exceptional, if the discretionary mitigation is considered to be “elective discretion,” it cannot solve the problem of gap due to the division of the applicable sentences as seen earlier. On the other hand, a new interpretation theory takes the form of reducing the amount to the lower limit of the statutory penalty only by 1/2, and there is no room for such problem, and it is clear and clear.

Meanwhile, according to a new theory of interpretation on voluntary mitigation, even if a crime for which the minimum statutory penalty is not set is mitigated, the applicable sentences are no longer lower than the applicable sentences, and thus the applicable sentences are not changed. However, it should be clearly stated that the grounds for mitigation are recognized as a process leading to the applicable parts of the law in the judgment.

Although this discussion mainly focuses on the punishment for limited imprisonment for convenience, it is also applied to other types of punishment, such as fines.

2) According to the interpretation of the language and text, “a sentence may be mitigated.” If a legal requirement corresponding to a cause for voluntary mitigation, such as mental and physical disability, attempted crime, and self-denunciation, occurs if the legal requirement is met, then the legal effect that can be mitigated by only one half of the minimum statutory penalty becomes effective as seen earlier. In other words, where a legal requirement is acknowledged, there is no room to intervene in the judge’s discretion as to whether to mitigate the sentence. Therefore, where the existence of a legal requirement corresponding to a cause for voluntary mitigation is recognized, the legal effect is always existing, and the legal effect differs from the scope of the applicable sentence. As such, where it is recognized that a cause for voluntary mitigation exists, the court shall always enter the relevant matter in the application of the law. The same applies even if the defendant does not assert any claim on the cause for voluntary mitigation. Furthermore, since a voluntary mitigation brings about the effect of lowering the applicable sentence whenever a defendant claims a cause for voluntary mitigation, the judgment on the conviction should be entered in the judgment of conviction pursuant to Article 323(2) of the Criminal Procedure Act.

3) As above, it is necessary to newly understand the grounds for mitigation that were compared with the previous necessary mitigation and discretionary mitigation. As seen earlier, the effect of voluntary mitigation takes effect only by lowering the lower limit, whereas the necessary mitigation takes effect by lowering both the upper and lower limit. In the case of the necessary mitigation, the effect of allowing a lower sentence than the lower limit of the statutory penalty to be recognized as the relevant ground is that the maximum statutory punishment can be mitigated by half at the same time. On the other hand, in the case of voluntary mitigation, the degree of mitigation of liability is lower than the case of the necessary mitigation, and the degree of mitigation of liability is deemed lower than the case of the necessary mitigation, and thus, all punishment within the scope stipulated by the original statutory punishment can be sentenced. As such, if understanding as seen above, it seems inappropriate to distinguish the previous term “the pertinent statutory mitigation” from the former one, which is “the pertinent statutory mitigation” in terms of the requisite mitigation and mitigation, as a matter of course, would be inappropriate.

4) As above, this study examined the contents of new interpretation theory regarding discretionary mitigation. However, with the knowledge of the new interpretation theory, there is no difference between the present practice and the present practice.

First of all, there is no difference between practical practice and new interpretation theory in terms of referring to the final scope in which a judge can choose a sentence of sentence. At present, practical practice can decide whether to grant a sentence of sentence of sentence, and accordingly, the scope of reduction and the scope not to be reduced can be considered as a sentence of punishment respectively. Since a judge can decide a sentence of punishment within the scope not to grant a sentence of mitigation, there is no difference between the new interpretation theory that regards the sum of the above two scope as a sentence of punishment.

Next, if the legal requirements are acknowledged, the legal effect on the person is to be derived. The new interpretation theory is to establish the same logical system with regard to discretionary mitigation. The current practice is to understand the legal effect based on the grounds for other aggravation and mitigation as “reasonable discretion” and understand it as “voluntary mitigation” only in discretionary mitigation. The new interpretation theory is to interpret the legal effect based on the grounds for all aggravation and mitigation as “ex officio confirmation.” From the standpoint of trial practice, no new interpretation is required to be made at all.

E. 1) The Majority Opinion, which states that “if it is not necessary to lower the lower limit of the applicable sentencing, it is unnecessary to voluntarily reduce the applicable sentencing age,” does not mean that a decision on whether to grant a discretionary mitigation is made subsequent to the determination of the current practical sentence, and does not err by the said practical practice.”

However, according to the current practice, the sentence is bound to be determined prior to the determination of the applicable sentences. In practice, “if it is not necessary to lower the applicable sentences, there is no need to voluntarily reduce the applicable sentences.” This practice has been widely used for a long time, and can be confirmed in the past and the current court training materials, etc. According to such practice, whether to grant voluntary mitigation or not is necessary to lower the applicable sentences in light of the sentencing sentence. However, in cases where it is necessary to lower the applicable sentences, it is difficult to find it necessary to lower the applicable sentences without the sentence. Ultimately, in order to determine whether to grant voluntary mitigation according to practice, it is difficult to determine the applicable sentences before determining the applicable sentences. Furthermore, in order to determine whether to determine whether to grant voluntary mitigation according to the applicable sentences, it is unreasonable to determine the applicable sentences before determining the applicable sentences, which is a reason for voluntary mitigation (see, e.g., Supreme Court Decision 98Do492, supra, the Majority Opinion appears to have determined the applicable sentencing guidelines in the process of determining voluntary mitigation or mitigation of punishment.

Meanwhile, as seen earlier, the fact that there is no discussion about discretionary mitigation in practice at all is that judges in charge of practical affairs have determined sentence in the aggregate of the scope in which the scope of discretionary mitigation has been mitigated and the scope not exceeding the scope of discretionary mitigation, such as a new interpretation. As can be seen, even though the current practice has been wrong, the fact that judges could have been maintained without any particular awareness is that judges could avoid the problems that may arise in the current practice by avoiding judgment according to the current practice and making decisions in the same manner as a new interpretation, and that the current practice is not because they could be prior to the majority opinion.

2) In granting statutory mitigation of imprisonment for a limited term, the Majority Opinion, as stipulated in Article 55(1)3 of the Criminal Act, does not reduce both a long term and a short term to 1/2, but a mitigation of either a long term or a short term to 1/2 cannot be permitted under the principle of no crime without law. If the Majority Opinion understood the foregoing separate opinion to mean that the part concerning the upper limit of Article 55(1)3 of the Criminal Act is not applicable, it is erroneous that it is a matter of law.

As seen earlier detailed explanation, the Concurring Opinion, in the case of voluntary mitigation, may determine the sentence that covers both the upper and lower limit to be mitigated by 1/2 pursuant to Article 55(1)3 of the Criminal Act, and both the upper and lower limit to be mitigated by 1/2. As such, this is the same result as the upper limit of statutory punishment is left as it is, and the upper limit of statutory punishment is reduced by 1/2 only the lower limit is the same. In other words, it is merely a brief expression of both cases where statutory mitigation is made pursuant to Article 5(1)3 of the Criminal Act and cases where statutory mitigation is not made. Unlike Article 55(1)3 of the Criminal Act, a statutory mitigation that reduces only short-term to 1/2 is not recognized.

3) The Majority Opinion states that a number of discretion is given to judges, such as selection of types of punishment, until a sentence is determined after conviction, and that the discretion of judges in relation to discretionary mitigation is only one of them.

For instance, in the case of larceny under Article 329 of the Criminal Act, since punishment and fine are prescribed selectively, it is inevitable to choose the type of punishment. In order to determine the sentence, the same punishment is expressed at all times at the pre-determination stage. However, in practice as to the crime of attempted special injury, where punishment is not to be mitigated, punishment for not less than six months but less than one year shall be excluded from the first punishment against the defendant. In the case of the former, if the same punishment is applied to all defendants, the punishment is differently applied depending on the defendant. In this regard, the issue of choice of the type of punishment and the issue of voluntary mitigation of punishment are completely different.

4) As seen earlier, there is a view that the argument of the reason for voluntary mitigation, while maintaining the current practice, constitutes “a statement of fact that is the reason for the increase of punishment, reduction or exemption” under Article 323(2) of the Criminal Procedure Act, and its judgment should be clearly stated. However, the precedents have accepted the Defendant’s argument regarding the reason for voluntary mitigation, even if the court omitted its judgment on the Defendant’s assertion, and have offered a theoretical basis to justify the omission of judgment by the court on the Defendant’s assertion. However, even if the reason for voluntary mitigation is recognized, it seems not logically difficult to clarify the judgment on the argument of the reason for voluntary mitigation as it continues in practice at present, even if the occurrence of the legal effect of the reason for voluntary mitigation is uncertain.

Even if there is a change in the current practice of discretionary mitigation and the determination of the grounds for discretionary mitigation is required to be clearly stated, various difficulties are expected. However, there is no separate problem if there is no reason for voluntary mitigation, such as voluntary mitigation, as a result of the examination of the defendant's argument, even if the grounds for voluntary mitigation are recognized, it is a matter whether a judge is determined not to reduce the sentence. In particular, it is difficult for a defendant to separately determine the grounds for which he or she would not reduce the sentence, and it is difficult to distinguish the sentencing process and specific sentencing for the decision of the sentence. Since the sentencing for the decision of the sentence should be distinct, it is very desirable to state the circumstances other than the sentencing conditions, and it is difficult to determine whether to reduce the sentence. Ultimately, if the grounds for discretionary mitigation are recognized to avoid such difficulty, it will be operated in the direction of discretionary mitigation pursuant to Article 55(1) of the Criminal Act at all times, which would damage the purport that the Criminal Act regulates voluntary mitigation and necessary mitigation.

These problems can be confirmed by examining the recent practical precedents on the argument of mental or physical disability mentioned in paragraph (c)(11) above. If a mental or physical disability has been changed from a necessary mitigation to a voluntary mitigation, it is recognized that the defendant's assertion is rejected on the ground that the fact of mental or physical disability is not recognized, and it is recognized that the case where the defendant's claim is reduced for the reason that the fact of mental or physical disability is not recognized, and the case where the mitigation of mental or physical disability is made even if the lower limit of the punishment is not to be lowered. However, even though the mental or physical disability is recognized, it is difficult to find the case where the reason is stated in the written judgment without the mitigation of mental or physical disability. This practice is not different from that where the mitigation is determined depending on the recognition of mental or physical disability, and it is practically the same as the necessary mitigation. As such, it is highly probable that the distinction between the two parties is difficult if the judgment on the voluntary mitigation claim is recorded in the written judgment while maintaining the practical

5) The issue of statutory interpretation that takes place in the course of a trial pertains to most of the legal requirements. In such a case, whether to grant a legal effect depends on which opinion is chosen is different. In other words, the acquisition and loss of the legal effect depends on how to define the boundary of the legal requirements. There are “to obtain” and “to lose”.

However, the issue of discretionary mitigation dealt with in this decision, however, will not be discussed as to the scope of punishment that can be sentenced to the defendant, and how to express it in the judgment in the form of legal logic. It would be more appropriate to discuss the practical improvement of criminal judgment. It would be more appropriate to discuss the practical improvement of criminal judgment. Through a new interpretation theory, it would be possible to solve a lot of practical issues at present, and it would be difficult to find practical issues in the legal principles newly raised, and it would be difficult to find practical issues. In addition, it would be difficult to see what is to observe the present practical practice, which is to prepare a criminal decision that fails to clearly deliver the range of punishment to be sentenced to the punishment that is linked to the erroneous interpretation of the text and text. It is difficult for the majority opinion to clearly oppose what is, and whether it is opposed to the Majority Opinion on the ground of son.

F. Examining the problems raised on the basis of a new interpretation on the discretionary mitigation as above, we can find out that all of the following problems are naturally resolved.

1) According to a new interpretation theory, in all cases where a reason for voluntary mitigation is recognized, the minimum statutory punishment is mitigated to 1/2. As such, the same crime is committed and the Defendants are punished by the same applicable sentences whenever there are the same reasons for the increase or decrease of punishment. If a ground for statutory mitigation is recognized, the legal effect therefrom is always the same, and the applicable sentences are equally determined.

2) According to a new interpretation theory, it does not determine whether to apply legal mitigation according to the discretion of a judge with regard to reasons for voluntary mitigation, such as practical affairs, and at all times, the effect of change of the applicable sentences arises. As such, it is not limited to cases where the applicable sentences are lower than the applicable sentences in practice, and there is no room to add discretionary mitigation to the application of the statutes, even if the sentence is determined and the sentence is not applicable to the applicable sentences.

3) According to the current practice, where there are several reasons for voluntary mitigation, for instance, a number of applicable sentences may arise, such as “one to 30 years of imprisonment,” “one to 6 months of imprisonment,” “one to 7 years of imprisonment,” and “one to 3 years of imprisonment,” and “one to 3 months of imprisonment,” in a case where there are several reasons for voluntary mitigation as above. However, according to a new interpretation, where there are several reasons for voluntary mitigation, the applicable sentences shall be reduced by 1/2 by only the lower limit, and thus, the applicable sentences shall always be reduced by 4.5 to 30 years of imprisonment.”

4) According to Article 56 of the Criminal Act, the statutory mitigation should be carried out prior to the aggravation of concurrent crimes. However, according to the current practice, among multiple concurrent crimes, the most serious crimes subject to aggravation pursuant to Article 38(1) of the Criminal Act may vary depending on the discretion of the judge in regard to voluntary mitigation, even in cases where the highest crime is determined by comparison of punishment, not by the nature of the crime or the criminal offense, but by the comparison of punishment. However, according to a new interpretation, if a new ground for discretionary mitigation is recognized, the lower limit of statutory punishment is always mitigated to half, and the same punishment becomes the same. Accordingly, the most serious crime subject to aggravation of concurrent crimes is consistently determined based on this.

5) According to the current practice, even if a sentence identical to the lower limit of the applicable sentences is imposed, the appeal on the ground of unfair sentencing may only be recognized. However, according to a new interpretation theory, if there exists a ground for discretionary mitigation, the applicable sentences include to the maximum extent possible to determine a specific sentence by a judge, and the applicable sentences are determined within the scope of the applicable sentences expanded to all possible areas, so if the applicable sentences are sentenced to the lower limit of the applicable sentences, the Defendant is bound to be sentenced to the maximum favorable sentence. Therefore, in such a case, there is no room for accepting an appeal on the ground of unfair sentencing, and such interpretation is obvious to conform to the structure of our criminal procedure. The phrase “I am unable to suspend the execution under the law,” as seen earlier, may be very inaccurate in the current practice concerning discretionary mitigation.

6) According to the current practice, where the lower limit of the applicable range of the sentencing range, which did not grant a voluntary mitigation in the first instance trial, is sentenced to a sentence lower than that of the first instance court, the appellate court may render a sentence lower than that of the first instance court. To do so, the part of the first instance judgment’s application ought to be modified in order to lower the lower limit of the applicable sentencing range by granting a voluntary mitigation. However, as seen earlier in the new interpretation theory, since a voluntary mitigation has the same legal effect at all times as seen earlier, there does not occur any situation where the applicable parts of the first instance judgment’s statutes are modified to apply a new discretionary mitigation while accepting the grounds

G. We examine the judgment of the court below in light of a new interpretation on discretionary mitigation.

According to the present practice on voluntary mitigation, the first instance court reduced the punishment for attempted special injury according to Article 55(1)3 of the Criminal Act while reducing attempted punishment, which is a voluntary mitigation, in accordance with Article 25(2) of the Criminal Act. As a result, the punishment for attempted special injury was reduced for not less than six months but not more than five years, and the punishment for attempted special injury was determined based on the above term of punishment.

However, according to a new interpretation theory on voluntary mitigation, mitigation of attempted special injury crimes shall be based on the term of punishment to be mitigated to 1/2 only the lowest of the term of the crime of attempted special injury by applying Articles 25(2) and 55(1)3 of the Criminal Act (applicable only to mitigation) (Article 25(2) of the Criminal Act, and the term of the punishment to be mitigated to 1/2 of the minimum of the term of the crime of attempted special injury (at least six months but not more than ten years of imprisonment). However, since the term of the punishment to be aggravated by 1/2 of the term of the crime of attempted special injury (at least 15 years of the term of the punishment (at least 12 years), the sum of the term of the crime of attempted special injury and the term of the crime of assault (at least 12 years of imprisonment) is lower, the punishment shall

Although the court below did not correct the above error, it erred by misapprehending the legal principles on discretionary mitigation, the punishment imposed by the court of first instance, which the court of first instance maintained by the court below, is within the scope of punishment according to a new interpretation, and is not disadvantageous to the defendant, and thus, it does not seem that the above error affected the conclusion of the judgment. The judgment on the defendant's ground of appeal is consistent with the majority opinion.

As above, I agree with the majority opinion on the conclusion that there is no ground to reverse the judgment of the court below, but with different reasons, I express my concurring opinion.

6. Concurrence with the Concurrence by Justice Lee Ki-taik

A. The key issue of the instant case is whether the practical practice is appropriate as to discretionary mitigation, including attempted mitigation under Article 25(2) of the Criminal Act. Since the practical practice currently treats attempted mitigation as the same as other voluntary mitigation, the separate opinion discussed on the new interpretation of the general provision for voluntary mitigation without distinguishing voluntary mitigation from other voluntary mitigations. However, as examined below, in relation to “voluntary mitigation”, there is a specific difference from other voluntary mitigations. In other words, other voluntary mitigation is an issue concerning the meaning of “the scope of punishment” in determining “the scope of punishment” under the premise of statutory punishment prescribed by the penal provision, as discussed in the separate opinion, on the other hand, it is a matter concerning the meaning of “the provision for voluntary mitigation” in determining “the statutory penalty for attempted mitigation” which is not prescribed by the individual penal provision, and it is a matter concerning the meaning of “the provision for punishment” in determining “the statutory punishment for attempted mitigation.”

At present, the common theory of practice and academic circles, in principle, punish an attempted crime under Article 25(1) of the Criminal Act (hereinafter “Attempted crime”), which is the same statutory penalty as that of an attempted crime, and interpret it as merely a voluntary reason for mitigation of punishment, depending on the case under Article 25(2) of the same Act. However, the understanding of the above attempted crime in practice is erroneous. An attempted crime is a separate crime distinct from the attempted crime, and has unique statutory penalty, and it is reasonable to view that the statutory penalty is set at the scope that is mitigated by 1/2 to the minimum statutory penalty of an attempted crime.

First, Article 29 of the Criminal Act provides that “The punishment for attempted crimes shall be prescribed in each Article,” and Article 29 of the Criminal Act provides that “an attempted crime under the preceding Article shall be punished.” Next, the elements of an attempted crime are combined with Article 25(1) of the Criminal Act providing that “When an intended crime does not end or if the intended crime does not occur after commencing the commission of a crime, it shall be punishable as an attempted crime.” In addition, the elements of an attempted crime are determined by combining the provisions that “the punishment for attempted crimes may be mitigated than that for attempted crimes” under Article 25(2) of the Criminal Act with regard to the meaning of mitigation, and Article 5(1) of the Criminal Act with regard to the meaning of statutory punishment for attempted crimes under Articles 25(1) of the Criminal Act with regard to “the punishment for attempted crimes under Articles 254 and 250(1) of the Criminal Act shall be punishable by imprisonment with prison labor for not less than two years, and a person who does not start to commit a murder or commit an intended crime under Article 25(25(2) of the Criminal Act.”

As above, a new understanding of the punishment for attempted crimes is required as follows. It will be discussed mainly on the crime of consequence for convenience.

1) Article 25(1) of the Criminal Act provides, “When an intended crime is not completed or if the intended result does not occur, it shall be punishable as an attempted crime.” In the case of an attempted crime, it shall not be punishable only on the basis of Article 25(1) of the Criminal Act, and shall not be punished as an attempted crime on the sole basis of the penal provision of an attempted crime. The elements of an attempted crime are completed in combination with the penal provision of an attempted crime and Article 25(1) of the Criminal Act, and are justifiable as the basis for the punishment of an attempted crime. If an attempted crime under Articles 254 and 250(1) of the Criminal Act is examples of the attempted crime of murder under Articles 254 of the Criminal Act, the provision of “a person who kills another” under Article 250(1) of the Criminal Act and the provision of Article 25(1) of the Criminal Act are combined with the provision of Article 25(1) of the Criminal Act, and the concept of a attempted crime under Article 25(1) of the Criminal Act.

2) As for the elements of a crime, the statutory penalty for attempted crimes ought to be understood to be determined by combining both the penal provision for term crime and Article 25(2) of the Criminal Act. Article 25(2) of the Criminal Act provides, “The punishment for attempted crimes may be mitigated than that for term crime.” According to a new interpretation on voluntary mitigation, the statutory penalty for attempted crimes is determined to be mitigated by 1/2,00 only the minimum statutory penalty for term crime.

At present, practical affairs understand Article 25(2) of the Criminal Act on the punishment of attempted crimes as a discretionary mitigation provision. In other words, an attempted crime, in principle, is punished as the same statutory penalty as that of an attempted crime, but may be mitigated or not be mitigated pursuant to Article 25(2) of the Criminal Act. However, there is no ground for the same statutory punishment as that of an attempted crime. In addition, even though there is a substantial difference between the attempted crime and an attempted crime, the same is difficult to accept in the legal doctrine of the Criminal Act. Furthermore, considering that there are many crimes that do not punish attempted crimes, it is unreasonable to view that the statutory punishment of an attempted crime is equal to that of an attempted crime in principle.

3) Article 25(1) of the Criminal Act provides that “When an attempted crime is not completed or if a result does not occur after commencing the commission of the crime, the punishment may be mitigated than that of the attempted crime” and Article 25(2) of the Criminal Act provides that “The punishment of the attempted crime may be mitigated than that of the attempted crime” and Article 29 of the Criminal Act provides that “The punishment of the attempted crime shall be determined by each Article,” and the penal provision of the Criminal Act provides that “an attempted crime under the preceding Article shall be punished,” instead of a complicated form where the legislators separately stipulate the elements and statutory punishment for the attempted crime and individually define the elements and statutory punishment for each crime.” Article 25(1) of the Criminal Act provides that “When an attempted crime is punished for an attempted crime, the general principle of punishment for the attempted crime shall have been provided for in the general provisions, and only if an attempted crime is designated as an attempted crime, it shall be punished separately from all the elements and statutory punishment for the individual attempted crimes under Article 254 of the Criminal Act.”

In other words, the Criminal Act, instead of individually complicated provision of the elements and statutory penalty for attempted crimes for each crime, has established the provisions of Article 25 of the General Provisions (1) and the statutory penalty (2) together with the individual penal provisions, so that the elements and statutory penalty for attempted crimes can be derived. In addition, it is reasonable to view that legislators explicitly expressed that the statutory penalty for attempted crimes should be mitigated by 1/2 of the minimum amount of the term crime, rather than the term crime, through the aforementioned statutory form. If a provision of individual statutory penalty for attempted crimes has been provided, it is very difficult to express such legislative intent. Accordingly, even if the statutory penalty for attempted crimes is the same as the term crime, in principle, it is difficult to arbitrarily reduce it pursuant to Article 25(2) of the Criminal Act.

Based on a new understanding of these attempted crimes, the legislators do not impose a penal provision on attempted crimes for crimes that need not be punished as a minor crime under item (a). In the event that there is a need for punishment on the risk of occurrence of consequence resulting from the commencement of implementation even though the result does not occur, the legislators set a penal provision on attempted crimes under Article 25 (2) of the Criminal Act, which has been mitigated by 1/2,00 of the minimum statutory penalty for attempted crimes pursuant to Article 25 (2) of the Criminal Act. In the following case, even though the attempted crime is under remedy, if strong punishment is required, it can be seen that there is a case where the application of Article 25 (2) of the Criminal Act is excluded by separately stating the statutory penalty for

4) The term “legal penalty” means a punishment prescribed in an individual constituent element as a scope of punishment, which generally evaluates the typical illegality of each constituent element by legislators. In other words, the scope of punishment established by legislators upon meeting the constituent elements is set. If so, it is reasonable to view that both setting or amending the scope of punishment resulting from the constituent elements of an attempted crime are the elements of a decision on statutory punishment. It is not reasonable to regard it as a constituent element of a decision on statutory punishment as current practice. Furthermore, it is a principle prohibiting double evaluation that the circumstances constituting the constituent elements of a crime should not be considered again in the course of the determination of punishment. Moreover, the circumstance that the constituent elements of a crime should not be considered again in the course of the determination of punishment. Since the fact that the commencement of the commission of a crime and the occurrence of a crime did not occur, understanding of the constituent elements of an attempted crime constitutes double evaluation, and such interpretation of law

5) In the past, the Supreme Court has decided to the effect that “in cases where statutory punishment is explicitly prescribed in the Act on the Aggravated Punishment, etc. of Specific Crimes (Articles 5-4(6) and 11(1), etc.) with respect to an attempted crime of a specific specific crime in the same manner as that of an attempted crime” (see, e.g., Supreme Court Decisions 87Do1635, Sept. 22, 1987; 200Do3947, Nov. 14, 200; 2010Do1620, Nov. 25, 2010; 2010Do1620, Nov. 25, 2010) the statutory punishment for attempted crime is the same as that of an attempted crime, and Article 25(2) of the Criminal Act is not a provision that excludes voluntary mitigation of punishment, and thus, it is difficult to find the same meaning as that of an attempted crime.”

However, according to a new understanding that the statutory punishment for attempted crime is recognized as seen earlier, the statutory punishment for attempted crime is determined by combining the statutory punishment for attempted crime and Article 25(2) of the Criminal Act. If a special law explicitly states individual attempted punishment, it is unnecessary to interpret the law for the purpose of establishing statutory punishment, so there is no room to serve as a part of Article 25(2) of the Criminal Act, which serves as the purpose of establishing statutory punishment. As such, through a new understanding of attempted crime, the above Supreme Court precedents can be explained harmoniously without contradiction.

6) In short, Article 25(1) of the Criminal Act provides the elements of an attempted crime, and Article 25(2) of the Criminal Act provides the statutory penalty. The interpretation that the statutory penalty of an attempted crime is identical to that of an attempted crime without any express legal basis is contrary to the principle of no punishment without law. The elements of an attempted crime do not exist even before Article 25 of the Criminal Act operates.

B. We will point out one of the issues in relation to the jurisdiction of things.

Article 32 (1) 3 of the Court Organization Act provides that "cases falling under death penalty, life imprisonment, or imprisonment with or without prison labor for at least one year," which are subject to the jurisdiction of a collegiate panel under Article 32 (1) 3 of the Court Organization Act means cases where the lowest of the types of statutory penalty is imprisonment with or without prison labor for at least one year, and where minor fines, etc. are prescribed by multiple-choices, it is reasonable to interpret that such cases do

1) The Court Organization Act, in principle, allows a district court and its branch to exercise the authority to judge a district court and its branch court in accordance with each subparagraph of Article 32(1), exceptionally, the collegiate panel is required to judge the case. A serious case under the statutory penalty is determined as having jurisdiction over the collegiate panel in the sense that the treatment of the case is prudent. If the statutory penalty provides for a period of at least one year in the form of a fine, even if the fine is prescribed in the form of a selective type, the case is placed under jurisdiction of the collegiate panel. Accordingly, Article 16(1) of the Act on Special Measures for the Registration, etc. of Real Estate Ownership (hereinafter “Real Estate Ownership Registration Act”) provides that a person who prepares a false certificate of guarantee or obtains a written confirmation by false means shall be punished by imprisonment with prison labor for at least one year but not more than ten years, or a fine not less than 10 million won but not more than 100 million won, and such a case constitutes a violation of Article 16(1)3 of the Real Estate Ownership Registration Act or a fine not more than 15 years.

2) However, “cases falling under the death penalty, life imprisonment, or imprisonment with or without prison labor for not less than one year” under the jurisdiction of a collegiate panel pursuant to Article 32(1)3 of the Court Organization Act should be determined based only on the statutory penalty itself, which can be deemed as the stage prior to the selection of the type of punishment. At present, the above practice focuses on the fact that even if a fine is imposed under the statutory penalty, it would be more than one year if a person selects imprisonment, but the jurisdiction of an object should be determined based on the statutory penalty. Since a fine is less than “a imprisonment with or without prison labor for not less than one year”, it cannot be deemed that the above requirement is not applicable. Therefore, it is reasonable to interpret the lowest type of the statutory penalty, namely, where the lowest type of imprisonment with or without prison labor, which is the type of imprisonment with or without prison labor for not less than one year, among which the statutory penalty can be selected, if a more minor fine is prescribed, it is possible to view it as a single judge under the jurisdiction of a competent judge.

3) In addition, according to a new understanding on an attempted crime, the statutory penalty for an attempted crime is reduced to one half only the minimum statutory penalty for an attempted crime, and the jurisdiction over an attempted crime shall be based on the statutory penalty for an attempted crime. If an attempted crime is committed under Articles 143 and 141(2) of the Criminal Act, the statutory penalty for an attempted destruction of public property is “a term of not less than one year but not more than ten years” and the statutory penalty for an attempted destruction of public property is “a term of not less than six months and not more than ten years” and the statutory penalty for an attempted destruction of public property is “a term of imprisonment for not more than ten years” and thus, it is reasonable to view the crime of attempted destruction of public

As above, I express my concurrence with the Concurring Opinion.

Chief Justice Kim Jong-soo (Presiding Justice)