Review of the reasoning of the first instance judgment

On September 22, 1975, as a person who was sentenced to a punishment for a short term of one year and six months, and one year and eight months, and completed the execution of the above punishment and was released from the court on September 11, 1975, the defendant recognized that he committed a crime of robbery, bodily injury, or injury by robbery as stated in the judgment against the victim on September 22, 1975, and recognized that he committed the crime of injury or injury by robbery, and there was the above criminal record while applying the crime of robbery, and it was obvious that he was subject to aggravated repeated offense pursuant to Article 35 of the Criminal Act, and the original judgment maintained it and dismissed the defendant's appeal. However, if the reasoning of the judgment of the first instance is the same, it is logical that the defendant at the time of the judgment, at the time of the crime, was serving as a prison for the execution of imprisonment with prison labor sentenced by the above criminal record, and it is evident that there is any error in the statement of facts, and even if considering records, the defendant was sentenced to imprisonment with prison labor and the remaining facts of the court below.

In other words, according to the provisions of Article 35 of the Criminal Act, a person who commits a crime heavier than imprisonment without prison labor is subject to repeated punishment within three years after the execution of the sentence is completed or exempted. According to Article 76 of the same Act, with respect to life imprisonment for ten years without the invalidation or cancellation of the parole after parole is imposed, the execution of the sentence shall be deemed to have been completed. Therefore, if the remaining term of the sentence has been expired during the period of parole, it shall not be deemed that the execution of the sentence has yet to be completed during the period of parole. Accordingly, according to the above previous conviction and notification of the defendant, the defendant was sentenced for the above previous offense on April 11, 1974 and the date of the release is stated on November 8, 195, but, in fact, if the defendant committed a repeated crime on September 9, 199, which is prior to the date of release, the defendant cannot be deemed to have committed a repeated crime without any special doubt, such as suspension of execution of the sentence or parole, and his defense counsel cannot be deemed to have completed the sentence of the remaining term of the prosecution.

Therefore, the original judgment is reversed, and the case is remanded to Seoul High Court. It is so decided as per Disposition by the assent of all participating Justices.

Justices Han-jin (Presiding Justice)