Whether it may be sentenced again during the period of probation.

(Majority Opinion)

The meaning of the proviso of Article 62 (1) of the Criminal Act "a person in whose case five years have not passed since the completion of, or exemption from, a sentence of imprisonment without prison labor or a heavier punishment" does not mean only the case where five years have not passed since the completion of, or exemption from, the execution of the sentence, but also the case where the period of the suspension of the execution has not elapsed since, after being sentenced to a sentence of imprisonment without prison labor or a heavier punishment, but also the case where the suspension of the execution has not elapsed since the sentence was sentenced to a suspended sentence of Article 37 of the Criminal Act was committed before, after the case was tried in each separate procedure, and the decision of the other case where the suspended sentence becomes final and conclusive, if the suspended sentence cannot be sentenced again in the other case, it would lose balance substantially compared with the case where the suspended sentence cannot be sentenced at the same time with the case where the sentence was sentenced at the same time after the judgment was received at the same time in the same procedure, and it is reasonable to interpret that the meaning of the above proviso "the sentence" only

(Dissenting Opinion)

"A sentence of imprisonment without prison labor or heavier" under the proviso of Article 62 (1) of the Criminal Act refers not to the sentence, but to the case of a suspended sentence, including the case of a suspended sentence, and it does not change the meaning of the latter concurrent crimes of Article 37 of the Criminal Act.

(Separate Opinion)

“Punishment” under the proviso of Article 62(1) of the Criminal Act does not mean that the term “the sentence” means only a sentence of imprisonment without prison labor or heavier punishment but also includes a sentence of suspended execution. As such, a suspended sentence may be rendered regardless of whether the suspended sentence is a female crime even if it is a suspended sentence.

The proviso of Article 62 (1) of the Criminal Act

Supreme Court Decision 68Do720 delivered on July 2, 1968, 69Do69 delivered on October 28, 1969, Decision 83Do2198 delivered on June 26, 1969, Supreme Court Decision 88Do2198 delivered on April 11, 1989

Defendant

Prosecutor

Chuncheon District Court Decision 87No124 delivered on October 15, 1987

The appeal is dismissed.

We examine the prosecutor's grounds of appeal.

The meaning of "a person in whose case five years have not passed since the completion of, or exemption from, a sentence of imprisonment without prison labor or a heavier punishment imposed upon him/her" under the proviso of Article 62 (1) of the Criminal Act includes not only a case where five years have not passed since the completion of, or exemption from, the execution of a sentence, but also a case where the suspension of the execution of a sentence was imposed upon him/her, but also a case where the suspension of the execution of a sentence has not elapsed (see, e.g., Supreme Court Decision 4292Do563, May 18, 1960; 83Do2198, Jun. 26, 198).

However, under the strict interpretation of the above, if the sentence cannot be sentenced again in any case before and after the expiration of the period of probation, the number of concurrent crimes under Article 37 of the Criminal Act is prosecuted before and after the trial is held in each separate procedure, and the sentence becomes final and conclusive, the judgment of the other case cannot be sentenced again. If the above crimes are clearly balanced compared with those where the sentence of probation can be sentenced simultaneously after the trial is held at the same time in the same procedure, it is reasonable to interpret the provision of the above proviso to mean "the sentence" only where the sentence is imposed, and it does not include the case where the sentence is not sentenced.

According to the facts established by the court below, the defendant was sentenced to a suspended sentence of two years for one year for the crime of forging private documents, etc. at the Youngcheon District Court's Young-gu branch on September 4, 1986, and both the prosecutor and the defendant appealed. However, on February 19, 1987, the Chuncheon District Court dismissed all appeals, and the above judgment became final and conclusive. Meanwhile, the crime of forging private documents, etc. against the defendant was committed on October 25, 1984, which was before the above judgment becomes final and conclusive.

Therefore, since the crime of this case committed before the above judgment becomes final and conclusive is in the concurrent relation between the crime of final and conclusive judgment and the crime of this case under the latter part of Article 37 of the Criminal Act, the execution of the sentence can be suspended newly.

As to crimes committed after the judgment of the court below rendered a stay of execution, the part of the judgment that the court below stated as if it could be sentenced again to a stay of execution is erroneous, but the above error of the court below did not affect the conclusion of the judgment of this case.

Unlike the above opinion in 4292 Form 563 delivered on May 18, 1960; 68Do720 delivered on July 2, 1968; 69Do69 delivered on June 10, 1969; 68Do26 delivered on October 28, 1969; 83Do2198 delivered on June 26, 198; 88Do115 delivered on April 11, 1989; 88Do115 delivered on April 11, 1989, unlike the above opinion, the part of the judgment is to be discarded, although the crime of the case to be tried was committed prior to, or was committed after, the suspension of execution was declared, or was not able to be sentenced again.

Therefore, we cannot accept the argument that the court below's decision that sentenced the defendant to a suspended sentence is just and that the suspended sentence cannot be sentenced again in any case on the ground of the principle of no crime without the law.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices, except for the dissenting opinion by the Chief Justice Lee Il-young, Justice Kim Yong-ju, and the separate opinion by Justice Yoon-tae, Justice Yoon Jong-won, Justice Kim Jong-sik, and Justice Kim Yong-sik

The dissenting opinion of the Chief Justice Lee Il-young and Justice Kim Jong-ju is as follows.

(1) The proviso of Article 62(1) of the Criminal Act provides that the execution of a sentence may not be suspended for a person who has been sentenced to imprisonment without prison labor or a heavier punishment and for whom five years have not passed since the completion of or exemption from the execution of a sentence. Here, the term "the execution of a sentence of imprisonment without prison labor or a heavier punishment" does not mean only a sentence, but also includes a case where a suspended sentence is sentenced. This is obvious in light of the provision that a suspended sentence shall lose its validity when a person who has been sentenced to a suspended sentence under Article 63 of the same Act was sentenced to a sentence of imprisonment without prison labor or a heavier punishment during the suspended sentence and the judgment becomes final and conclusive. Therefore, the majority opinion expressed in this regard as to this point. However, as to some of the cases before the suspended sentence, the meaning of "the execution of a sentence of imprisonment without prison labor or a heavier punishment

(2) In the event that the literacy, which is the meaning of a law, is clear and logically inconsistent, it shall not be interpreted beyond one's own discretion except in exceptional cases such as where it is actually impossible to apply it, and in the case of the interpretation of the Criminal Code that requires more strict restrictions under other Acts, the degree of detention under other Acts may lead to unreasonable consequences, even if the express text provision may result in any unreasonable consequences, it shall not be applied by preventing the unreasonable consequences or by preventing the amendment of the express text provision from being made in favor of the defendant.

However, Article 62 of the Act on the Suspension of Execution does not provide for the distinction between cases of crimes committed within the period of probation and those committed before the final and conclusive judgment of probation, and even under the Criminal Act or any other Act, there are no grounds for interpreting the same separately between crimes committed during the period of probation and those committed before the final and conclusive judgment of probation. Therefore, if it is deemed that if the judgment of probation became final and conclusive and the crimes committed before the final judgment of probation were adjudicated simultaneously, it would have been sentenced at the same time prior to the final and conclusive judgment, it cannot be said that the sentence of probation may again be sentenced to the crimes committed before the final and conclusive judgment exceeds the scope of statutory interpretation of the judge.

(3) In addition, even if the majority opinion points out that unreasonable results may arise, it may lead to unreasonable results if a prosecutor fails to simultaneously prosecute the crimes committed before the judgment becomes final and conclusive, such as where the suspension of execution of punishment was pronounced not guilty for the remaining crimes or where only the prosecutor appeals against the acquittal portion, and where a higher court fails to simultaneously judge the crimes which were committed before the judgment becomes final and conclusive, as the prosecutor appeals against the acquittal portion. However, such cases do not seem to be difficult at the time of actual problems, and do not seem to be infeasible. Rather, if a prosecutor fails to prosecute the crimes committed before the judgment becomes final and conclusive, it is the result of the defendant's own initial conviction, and thus, it cannot be said that it is unreasonable to view that the majority of the judges are not obliged to take any disadvantage before the suspended sentence becomes final and conclusive, since it cannot be said that there is no other unreasonable result in the case where a prosecutor fails to prosecute the crimes committed before the judgment becomes final and conclusive.

(4) In other words, since the meaning of “the sentence of imprisonment without prison labor or heavier” as stipulated in Article 63 of the Criminal Act concerning the invalidation of the suspension of execution is not limited to the sentence, but there is no theory to interpret that the suspension of execution is included in the sentence, the sentence of the suspension of execution should be invalidated first, and if the sentence of the suspension of execution is sentenced in accordance with the Majority Opinion, it would be clear that the sentence of the suspension of execution would become invalidated first, and if so, it would be contrary to the purpose of the suspension of execution system. On the other hand, the result leading up to the new sentence of the suspension of execution to the person who is subject to the execution of the sentence, which would result in the occurrence of a result that would result in the failure of the court to re-determine the validity of the sentence under the Korean system of the suspension of execution of execution of Korea, and as a result, it would not be possible to separate and treat the same in advance only when the above contradictory result arises.

Of course, according to the majority opinion, it is not possible to try to first interpret that the suspended sentence is not effective if it is possible to suspend the execution as above, but there is no ground to interpret that the suspended sentence is not effective in any specific case among the cases where the suspended sentence is imposed, as well as Article 63 of the Criminal Act. As such, the interpretation as above is intended to prevent inconsistency between the unreasonable interpretation as to the proviso of Article 62(1) as to the proviso of Article 62(1) as well as to make an unfounded interpretation as to Article 63 as to the above Article 63 in order to prevent the inconsistency caused by the unreasonable interpretation, and it is unreasonable to say that it is unreasonable from the conclusion that the reasons for the suspended sentence is set up, and it cannot be said that the majority opinion itself makes a arbitrary interpretation exceeding the scope of statutory interpretation of the judge.

The separate opinion of the Supreme Court, the Supreme Court, the Supreme Court Kim Jong-won, and the Supreme Court Kim Yong-sik is as follows.

In the case of so-called female crime, I agree with the majority opinion that the suspended sentence can be sentenced, and that the judgment of the court below can be maintained as a result, but I agree with the majority opinion that the remaining suspended sentence, which is interpreted to include not only the sentence of imprisonment but also the sentence of imprisonment with prison labor or heavier punishment under the proviso of Article 62 (1) of the Criminal Act, can not be sentenced to a suspended sentence, is consistent with the dissenting opinion, and therefore, I would like to express different opinions on this point.

"Punishment" referred to in the proviso to Article 62 (1) of the Criminal Act shall not be construed as including the punishment imposed only by a sentence, but also by a suspended sentence.

This is because, after the suspension of execution is sentenced, the sentence becomes void by Article 65 of the Criminal Code after the suspension of execution expires, while the termination or exemption of the execution of the sentence can not be made from the beginning in an uncertain state before the expiration of the period.

In other words, the proviso of Article 62(1) of the Criminal Act separates only the part that “the sentence of imprisonment without prison labor or heavier punishment” is “the sentence of imprisonment without prison labor or heavier punishment,” and it appears that the sentence of the suspended sentence includes not only the sentence but also the sentence of the suspended sentence, but also the part that “the person in whose case five years have not passed since the completion or exemption of the execution” is directly connected with the above language and text cannot be seen as “the sentence of imprisonment without prison labor or heavier punishment of the person in whose case five

Nevertheless, the Majority Opinion does not interpret that “a sentence of imprisonment without prison labor or more” in the preceding part shall be separately removed and that the sentence shall include a suspended sentence.

In Article 35(1) of the Criminal Act, the phrase “after having been sentenced to imprisonment without prison labor or heavier punishment and having completed or exempted from the execution thereof” does not differ from that under the proviso of Article 62(1) of the Criminal Act. On the other hand, a party member is deemed to have been sentenced to imprisonment without prison labor or heavier punishment (see, e.g., Supreme Court Decision 83Do1600, Aug. 23, 1983).

According to the majority opinion and the dissenting opinion, if the decision of a party member so far as it is impossible to suspend the execution, the suspended sentence is still in an uncertain state where the suspended sentence is to be executed before the expiration of the period, so it does not constitute a person for whom five years have passed since the completion of the execution of the sentence or the exemption from the execution of the sentence before the expiration of the period, and the sentence of the suspended sentence is inconsistent with the application of the Act (see, e.g., Supreme Court Decision 59No563, May 18, 1960). If the decision again becomes final and conclusive after the suspended sentence is rendered to a person who is in the period of suspended sentence, then the suspended sentence will become invalidated and will become subject to the execution of the sentence (see, e.g., Supreme Court Decision 65Do162, Apr. 6, 1965). However, it is an exception to the provision of Article 62(1) of the Criminal Act that restricts the execution of the suspended sentence from the beginning, and thus, it cannot be interpreted as it cannot be justified or cancelled.

In addition, under the same premise, the party member judgment so far has not been able to explain why the execution of the sentence is not possible again to a person with a final and conclusive witness, or why it is contradictory to the application of the law. The majority opinion states that the suspended execution cannot be carried out in the suspended execution period, but it is possible in the case of so-called so-called so-called unconstitutional crime.

Under the principle of no crime law, the interpretation of the criminal law should be strict, and differential interpretation should be excluded.

There are no differences in the provision that the suspended sentence can be executed even in the suspended sentence, or there is no basis to interpret it, even if there is no difference in the current criminal law.

Not only in the case of female crime, but also in the case of other cases, there are many cases that can be sentenced to suspended sentence, and such an opportunity should be equally guaranteed.

In short, it is not a more faithful approach to the interpretation of penal provisions in regard to the suspended sentence, even if the suspended sentence is suspended, regardless of whether it is a female crime or not.

The separate opinions of the Supreme Court Round shall be as follows:

As for the interpretation of the proviso of Article 62 (1) of the Criminal Code, it is thought that the interpretation does not go against the above separate opinion and that it does not go against the grammatic theory, it is necessary to invoke this and add a few Mads.

In our criminal law, the provision of the suspended sentence system is based on the consideration of criminal policies that prevent the abolition of all prisons and imprisonment without prison labor, and achieve and achieve the purpose of special prevention, and therefore, how to determine the requirements for the suspended sentence is related to legislation. However, in light of the above purpose and function of the suspended sentence system, it is reasonable to exclude the suspended sentence from the rate of suspended sentence for those who are in the suspended sentence. Rather, we experience that it is reasonable to sentence the suspended sentence again for those who are in the suspended sentence.

Of course, the Majority Opinion’s interpretation of the Criminal Act does not necessarily mean that a person who is under the suspension of the execution of imprisonment without prison labor or a heavier punishment as stated in the Dissenting Opinion does not mean that the person who is under the suspension of the execution of imprisonment without prison labor or a heavier punishment is included in the above “person who is under the suspension of the execution of imprisonment without prison labor or a heavier punishment.” However, the interpretation of the same Act does not allow another person under the suspension of the execution of imprisonment without prison labor or a heavier punishment, and it is reasonable to interpret the same as criminal policy. However, in light of the original purpose of the suspended sentence system, it is reasonable to uniformly block the way of the suspended execution of a person under the suspension of the execution of imprisonment with prison labor or a heavier punishment, rather than uniformly

Therefore, in interpreting the provisions of the Criminal Act that do not explicitly exclude the suspension of execution for a person in the period of suspended sentence, it is necessary to block it, despite the way to interpret that a person in the period of suspended sentence may again be able to be able to suspend the execution, so it is necessary to reconsider whether to reduce the discretionary range of the judge's sentencing or not, and to do so in light of the nature of the suspended sentence system as criminal policy or the nature of the suspended sentence system.

In addition, it would be difficult to interpret that the meaning of "in the case of concurrent crimes under the latter part of Article 37 of the Criminal Act," as stated in the majority opinion, is limited to the case where a sentence is imposed, and that it does not include the case where a suspended sentence is sentenced, it would not be a convenient interpretation. Furthermore, it would be difficult to interpret the meaning of "in the case where a sentence is imposed in all the cases," and it would rather be possible to maintain the consistency in the interpretation of the Act.

Justices Lee Jong-il (Presiding Justice) Kim Young-chul Kim Young-ju (Presiding Justice) and Lee Jae-young, Lee Jae-ho, Lee Jae-ho, Lee Jae-ho, Lee Jae-ho, Lee Jae-won Kim Jong-ho, Kim Jong-young