[2] Whether Article 7 of the Act on the Lapse of Punishment, etc. applies to a case where a suspended sentence is sentenced and the grace period has expired without delay (negative)

Article 59(1) of the Criminal Act provides that "in the event a sentence of imprisonment or imprisonment without prison labor for not more than one year, suspension of qualifications or a fine is imposed, if the circumstances of the sentence are obvious, taking into account the matters specified in Article 51, the sentence may be suspended: Provided, That this shall not apply to a person who has been sentenced to suspension of qualifications or more severe punishment, except for a person who has been sentenced to suspension of qualifications or more severe punishment." The term " criminal records of a suspension of qualifications or more severe punishment" under the proviso above refer to criminal records of a suspension of qualifications or more severe punishment, and it is reasonable to interpret that the sentence loses its effect. Therefore, even if a person who has been sentenced to suspension of the execution of a punishment loses its effect after without the lapse of the specified grace period without the invalidation or cancellation of the sentence under Article 65 of the Criminal Act, the legal effect of the sentence is extinguished, and it does not mean that the facts of the sentence no longer exist even after the sentence had been sentenced."

In the same purport, the court below reversed the judgment of the court of first instance that suspended the sentence of the defendant, and sentenced the fine of the judgment of the court of first instance on December 30, 1991, on the ground that the defendant was sentenced to one year to a suspended sentence for a violation of the Punishment of Violences, etc. Act on December 30, 199 and the suspended sentence became final and conclusive and the suspended sentence is invalidated or revoked. However, the court below did not err by misapprehending the legal principles as to the suspended sentence or the legal principles as to the invalidation of the suspended sentence, as otherwise alleged in the ground of appeal.

In addition, Article 7 (1) of the Act on the Lapse of Punishment, etc. (hereinafter "the Lapse of punishment") provides for the invalidation of punishment applicable only to cases where the execution of punishment is completed or exempted without being sentenced to suspension of qualification or more severe punishment. Thus, as in this case, if the defendant, as in the judgment of this case, after being sentenced one year to a suspended sentence in August, passed without the invalidation or cancellation of the suspended sentence, and the suspended sentence becomes invalidated under Article 65 of the Criminal Act, the above sentence cannot be invalidated under Article 7 (1) of the Lapse of punishment Act, and even if the above sentence becomes invalidated under Article 7 (1) of the Lapse of Punishment, etc., the fact that the sentence was sentenced is not extinguished even if the above sentence is invalidated under Article 7 (1) of the Lapse of Punishment, etc., the above sentence is not extinguished (see Supreme Court Decision 2004Do4869, Oct. 15, 200).

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)