Aggravation of suspended sentence judgment (negative)
"A sentence of imprisonment without prison labor or heavier punishment" in the proviso to Article 62 (1) of the Criminal Act is not referred to only as "a sentence of imprisonment without prison labor or heavier punishment", and therefore, it shall not be sentenced again to a suspended sentence, considering whether the criminal facts of a case to be newly determined during the suspended sentence are before and after the suspended sentence.
Article 62(1) of the Criminal Act
Supreme Court Decision 83Do2198 Delivered on June 26, 1984
Seoul High Court Decision 88No247 delivered on May 3, 1985
The judgment below is reversed and the case is remanded to Seoul High Court.
We examine the prosecutor's grounds of appeal.
In the proviso of Article 62 (1) of the Criminal Code, "the sentence of imprisonment without prison labor or heavier punishment" is not referred to only as a sentence, and therefore, the suspended sentence cannot be again sentenced in the case because of the fact-finding in the suspended sentence, which was committed before, or subsequently committed an act that was committed before or after, a new trial was conducted (see Supreme Court Decision 83Do2198 delivered on June 26, 198).
According to the statement of the prosecutor's criminal judgment against the defendant who prosecuted after the filing of the appeal, the defendant was sentenced to a suspended sentence of 1 year and six months for a violation of the Punishment of Violences, etc. Act at the Seoul District Court's Southern Branch on July 13, 1987, and the above judgment became final and conclusive on that day.
Therefore, if a judgment of the court of first instance rendered on May 3, 198 by the defendant with the same judgment as the above certified copy of the judgment, it is reversed that the court of original judgment was sentenced to a maximum of three years of imprisonment and a short of two years and six months of imprisonment with prison labor for a violation of the proviso of Article 62 (1) of the Criminal Act and the suspension of execution for a period of two years and six months shall be sentenced to a violation of the proviso of Article 62 (1) of the Criminal Act. Therefore, the above provision of the law shall be reversed and remanded to the court below for a new
Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won
- 형법 제62조 제1항 (위헌조문)