[2] The case where the execution of a sentence of imprisonment with prison labor for one year and six months is deferred for three years only

[2] The case holding that the execution of a sentence of imprisonment with prison labor for one year and six months has been deferred for three years only

A defendant shall be punished by imprisonment for not less than one year and six months.

The 18-day detention days prior to the pronouncement of the judgment below shall be included in the above sentence.

However, from the date this judgment became final and conclusive, the execution of the sentence shall be suspended for three years only for one year of imprisonment.

A seized kacker (No. 1) shall be confiscated.

The sentence of the lower court (one year and six months of imprisonment, and three years of suspended execution) is too unhued and unreasonable.

2. Determination:

The grounds for appeal by the defendant shall be considered ex officio prior to the judgment.

Articles 3(1) and 2(1)3 of the Punishment of Violences, etc. Act provide that a person who commits an injury by carrying a deadly weapon or other dangerous articles shall be punished by imprisonment for a limited term of not less than three years. The lower court erred by sentencing one year and six months, which is less than a statutory penalty, even though the Defendant did not legally mitigate or mitigate the amount of punishment. In this respect, the lower court’s judgment cannot be maintained any longer.

3. Conclusion

The judgment of the court below is reversed in accordance with Article 364(2) and (6) of the Criminal Procedure Act, and it is again decided as follows after pleading.

Articles 3(1) and 2(1)3 of the Punishment of Violences, etc. Act and Article 257(1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

1. Suspension of execution;

We examine whether the execution of the sentence can be suspended only in the quantitative part of the sentence when a single sentence of imprisonment can be imposed against the defendant like the order.

(1) Interpretation of the current Criminal Code

Article 62(1) of the Criminal Act provides that “When a sentence of imprisonment with or without prison labor for not more than three years is to be imposed and extenuating circumstances exist, the execution of the sentence may be suspended for a period of not less than one year but not more than five years in consideration of the matters specified in Article 51.” This Article merely provides that the execution of the sentence may be suspended. In light of the logical interpretation, the term “the sentence” in this Article merely refers to “the entire sentence and not more than the sentence” and there is no ground to interpret that “the part of the sentence” is excluded. Rather, the term “the entire sentence or part of the sentence” is defined only as “the sentence” and it is interpreted as “the entire or part of the sentence” in accordance with the logical interpretation of this Article.

Article 62(2) of the Criminal Act provides that “When punishments are concurrently imposed, an execution of part of the punishment may be suspended.” The concurrent imposition of punishment refers to the concurrent imposition of a different type of punishment, such as imprisonment, fine, suspension of qualification, etc. In the event of the concurrent imposition of different types of punishment on the ground of the foregoing provision, it is possible to suspend execution of a part of the different type of punishment, but it is not allowed to suspend execution of a part of the single type of punishment. However, the above provision concerns the concurrent imposition of a different type of punishment, and it is not a provision concerning a part of the single type of punishment.

As for the crimes related to concurrent crimes under the latter part of Article 37 of the Criminal Act, a separate sentence shall be imposed in accordance with Article 39(1) of the Criminal Act. In the event that two sentences are sentenced by a judgment, if the requirements for a stay of execution as stipulated in Article 62(1) of the Criminal Act regarding each type of imprisonment are satisfied with respect to each type of imprisonment, a suspended sentence may be imposed for each type of imprisonment. Thus, it is possible to render a suspended sentence for each type of imprisonment (Supreme Court Decision 2000Do4637 Decided February 26, 2002). In other words, it is permissible to render a suspended sentence for each type of imprisonment and a suspended sentence for each type of imprisonment concurrently with respect to each type of imprisonment (Supreme Court Decision 200Do46

In conclusion, the suspension of the execution of part of a single type of punishment is allowed by Article 62 (1) of the Criminal Code, and in the interpretation of the current Criminal Code, the suspension of the execution of a sentence of imprisonment and a suspended execution of a sentence of imprisonment can be concurrently maintained, and some suspended execution do not conflict with any other provision of the Criminal Code

(2) The need for partial suspension of execution

The original purpose of the suspended sentence system is to prevent the defendant from having contact with the subordinate culture in prison and to provide him/her with an opportunity to re-inte himself/herself with the freedom and responsibility. However, if partial suspended sentence is recognized, it can be argued that such purpose of the suspended sentence is contrary to this system. However, not only the purpose of punishment is not limited to the re-socialization of the defendant, but also to suspend only part of the execution of the sentence. Rather, in cases where partial suspended sentence is deemed the best choice for the defendant and society, taking into comprehensive account other purposes of the suspended sentence, such as response, general prevention, and special prevention, it would be the combined purpose of allowing the suspended sentence. In particular, even if the minimum statutory penalty is too high, even if it is reduced to the maximum extent, the sentence would be more than two years, while the nature of the crime is excessive to justify the sentence of the defendant, and it is too inappropriate to release the defendant as the suspended sentence without achieving the purpose of the suspended sentence through detention, it would be more unreasonable for the court to have determined the necessity of the suspended sentence as part of the past.

Some of the suspended sentence is not disadvantageous to the defendant. If the suspended sentence is not permitted, the judge has to choose the sentence for the whole of the sentenced sentence.

Therefore, according to Article 62 (1) of the Criminal Code, the execution of the sentence shall be suspended for three years only from one year and six months of imprisonment to the defendant.

1. Confiscation;

Article 48 (1) 1 of the Criminal Act

Judges Yoon Nam-nam (Presiding Judge)