[2] In a case where the defendant was sentenced to imprisonment for life and the judgment became final and conclusive, and the crime of violation of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims was revealed before the judgment becomes final and conclusive and is prosecuted for concurrent crimes under the latter part of Article 37 of the Criminal Act, the case holding that the first instance court's failure to reduce the legal punishment under the proviso of Article 39

[2] In a case where a defendant was sentenced to imprisonment for life and a judgment became final and conclusive, and was charged with committing a violation of the former Act on the Punishment of Sexual Crimes and Protection, etc. of Victims thereof (special robbery, rape, etc.) before the judgment becomes final and conclusive, and the latter concurrent crimes of Article 37 of the Criminal Act are revealed, the case holding that even if there are other extenuating circumstances, such as the defendant's current exemplary life, the mitigation of imbalance between the latter concurrent crimes of Article 37 and the former concurrent crimes of Article 39(1) of the Criminal Act should vary depending on the statutory punishment and individual cases of each crime, and the necessity to impose the corresponding punishment as an infringement against a separate victim is recognized, and that the crime of indictment is recognized as an act of infringement against a separate victim, and as long as the first instance judgment is rendered simultaneously with the crime for which judgment became final and conclusive, it cannot be deemed that the statutory mitigation of punishment under the proviso of Article 39(1) of the Criminal Act is unreasonable.

The punishment of the court below (five years of imprisonment) is too unreasonable.

2. Determination

The crime of this case is revealed as a result of DNA identification after the 11th anniversary of March 29, 2001, which was the date of the crime, and in relation to concurrent crimes under the latter part of Article 37 of the Criminal Act with regard to the crime of violation of the Act on the Punishment of Sexual Crimes and Protection, etc. of Victims Thereof (special robbery, rape, etc.) sentenced to imprisonment for life on January 17, 202, and the latter part of Article 37 of the Criminal Act, it is examined whether the punishment may be mitigated or exempted pursuant to the latter part of Article 39(1) of the Criminal Act, taking into account equity

Article 39(1) of the Criminal Act does not provide for an imbalance between latter concurrent crimes under Article 37 of the Criminal Act and the former concurrent crimes, but has not been adjudicated among concurrent crimes. Article 39 of the Criminal Act provides that “When the entire punishment is determined within the applicable range of the punishment calculated by applying Article 38 of the Criminal Act to the crime for which judgment has become final and conclusive, punishment for the crime which has not been adjudicated after deducting the punishment for the crime for which judgment has become final from the total punishment, shall be imposed” or “where the total sum of sentenced sentences for the crime concerned and the crime for which judgment has become final and conclusive falls within the applicable range of punishment calculated by applying Article 38 of the Criminal Act to the crimes for which judgment has not become final and conclusive, punishment for the latter concurrent crimes shall not be imposed within the applicable range of punishment for which judgment has not become final and conclusive, taking into account whether the latter two concurrent crimes are to be determined within the applicable range of punishment for which punishment for which judgment has become final and conclusive, shall not be determined within the applicable range of punishment for the final and conclusive concurrent crimes.” The purport of punishment for which judgment may be determined within the latter concurrent crimes subject to be determined.

Meanwhile, according to Article 462 of the Criminal Procedure Act, as a matter of principle, the punishment for life with heavy penalty is to be executed first. However, according to the proviso to Article 462 of the same Act, the length in which the prosecutor can suspend the execution of a heavy sentence and the execution of another sentence is opened. Meanwhile, according to Article 72(1) of the Criminal Act, parole can be granted after the lapse of 20 years in the case of imprisonment for life, and Article 121(1) of the Administration and Treatment of Correctional Institution Inmates Act, the warden of a prison shall apply for the review of parole to a convicted prisoner for whom the period under Article 72(1) of the Criminal Act expires. Considering these legal provisions comprehensively, the current practice of sentence is suspended after the lapse of 20 years in the execution of imprisonment for life and according to the method in which the prosecutor separately sentenced to imprisonment for life under the proviso to Article 462 of the Criminal Procedure Act. Considering these circumstances, even if a final sentence becomes final and conclusive, it does not necessarily mean that the possibility of execution of imprisonment is determined separately.

The crime of this case is established at night by taking into account the following circumstances: (a) the Defendant’s crime of this case was committed at night, where he opened a window for the brupted crime prevention, and intrudes upon the victim’s residence, and took property by force and rapes the victim with a deadly weapon; (b) the victim appears to have suffered considerable mental impulse due to the crime of this case; (c) the crime of this case was committed by the victim, who was sentenced to imprisonment for life, was rape, robbery, or rape, which the Defendant committed with a knife, with a deadly weapon, by intrusion upon the mother house in the middle of one year; and (d) the crime of this case was committed at least 37 times, including rape, robbery, and rape, which the Defendant committed with a deadly weapon, was committed at the same time, and there seems to be no room for the first instance court to have sentenced the Defendant to imprisonment for life. Nevertheless, the lower court determined that the Defendant had been sentenced to imprisonment for life after the sentence of this case and its depth was determined.

As seen earlier, in accordance with Article 39(1) of the Criminal Act, the degree of the imbalance of punishment between latter concurrent crimes under Article 37 and former concurrent crimes should vary depending on the statutory penalty and individual cases. The instant crime is recognized as an infringement against a separate victim, and as a means of which corresponding punishment is imposed. As long as the lower court sentenced to discretionary mitigation after taking account of the aforementioned circumstances, given that the Defendant is currently exemplary life and the Defendant’s wife and his wife are married, etc., it is unreasonable for the lower court to not reconcilate the statutory mitigation under the proviso of Article 39(1) of the Criminal Act, in addition to discretionary mitigation, even if there are extenuating circumstances not indicated by the lower court, such as where the lower court rendered discretionary mitigation and sentenced the lower court to the maximum punishment within the scope of the applicable punishment.

Therefore, the defendant's assertion of unfair sentencing is without merit.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Hyun-tae (Presiding Judge)