According to Articles 60 and 61(1) of the Criminal Act, Articles 335 and 336(1) of the Criminal Procedure Act, even if a person who has received a suspended sentence is sentenced to a suspension of qualification or a heavier punishment during the period of the said suspension of sentence and the said judgment becomes final and conclusive, the suspended sentence is invalidated only upon a public prosecutor’s request for the invalidation of the suspended sentence. When two years have elapsed after the judgment of the suspended sentence became final and conclusive, it shall be deemed that the suspension of sentence was acquitted pursuant to Article 60 of the Criminal Act, and subsequent there is no judgment of the suspended sentence subject to invalidation, and thus, no decision of the invalidation of the suspended sentence may be made. This same applies to a case where the period of the suspended sentence has expired while the period of the suspended sentence was in the course of the appellate trial before the suspension of execution becomes effective due to an immediate appeal or reappeal having the effect of the suspended sentence as to the original decision (see, e.g., Supreme Court Order 2007Mo348, Jun. 28, 2007;

According to the records, on December 10, 2015, the Re-Appellant was sentenced to the suspended sentence of a fine of KRW 1,000,000 for defamation and was confirmed on December 18, 2015, and the Re-Appellant was sentenced to imprisonment for one year and two years of suspended sentence due to violation of the Punishment of Violences, etc. Act at the Seoul Northern District Court on March 11, 2016, and was sentenced to the suspended sentence for one year and two years of suspended sentence at the Seoul Northern District Court, which was the appellate court, and was sentenced to the dismissal by the Supreme Court on May 31, 2017, and the prosecutor filed a request for invalidation of the suspended sentence for the reason that the judgment of suspension of qualification or more severe punishment was finalized during the suspended sentence on July 25, 2017, and accordingly, the lower court submitted to the Supreme Court the lower court for a lawful judgment as to the Re-Appellant on September 11, 2017.

Therefore, the order of the court below that determined the suspended sentence against the re-appellant has not yet expired prior to the occurrence of the validity decision of the suspended sentence due to the re-appeal in this case, and the defendant's case for which the judgment of the suspended sentence against the re-appellant was rendered is deemed to have been acquitted and thus there is no judgment of the suspended sentence subject to invalidation. Therefore, the public prosecutor's claim for invalidation of the suspended sentence against the re-appellant based on the premise that there is a ground under Article 61 (1) of the Criminal Act cannot be accepted. The order of the court below that determined otherwise cannot no longer maintain the conclusion, and therefore, the order of the court below is reversed, but it is sufficient for the

Therefore, the order of the court below is reversed and the claim of this case is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)