Whether reduction of punishment is necessarily required to be governed by the law mitigation pursuant to Article 55 of the Criminal Act, in case of mitigation of punishment as a confirmation measure by the convening authority of the military court.

According to Article 369(1) of the Military Court Act, a judgment shall be confirmed by the convening authority, and if there are grounds to recognize that the punishment is unfair in consideration of the matters of Article 51 of the Criminal Act, the punishment may be mitigated or the execution of the punishment may be exempted. Thus, there is no restriction provision that the punishment shall be mitigated in accordance with the law mitigation under Article 55 of the Criminal Act, so the competent authority may not comply with Article 55 of the Criminal Act.

Article 369 of the Military Court Act, Article 55 of the Criminal Act

Defendant’s counsel (Korean Civil Defense Counsel)

(National Office) Attorney Park Woo-soo

High Court Decision 74No. 78 delivered on April 16, 1974

We reverse the original judgment.

The case shall be remanded to the Army, High School, and Military Council.

We examine the defendant's grounds of appeal by the counsel of state appointed defense counsel.

According to the reasoning of the judgment of the court below, on the ground that the first instance court's general law council sentenced the defendant to life imprisonment for a prosecuted case such as attempted death, and sentenced the defendant to imprisonment with prison labor for one year, Article 38 of the Regulations on Military Prosecution Duties and Article 4 of the Military Criminal Act (It is clear that the term "69.8.21" is a clerical error in the 59.8.21) The court below erred in the misapprehension of the judgment of the first instance court as well as the reduction authority of punishment to the military law council of the existence of the statutory system and trial system by the military law council, as well as the reduction authority of punishment, and as long as there is no right to exempt the execution of punishment, it is unnecessary to reduce punishment beyond the scope of Article 55 of the Criminal Act and there is no need to exempt the defendant from execution of punishment, and therefore, it is necessary to judge that the sentence should be mitigated by the method provided for in Article 55 of the Criminal Act and the new judgment of the first instance court should be reversed by the competent authority for the first instance court's judgment to the extent of appeal.

However, the Supreme Court ruling cited by the original judgment is not a proper precedent with regard to the reduction of punishment by the military court authorities. Article 38-1 (1) of the Regulations on the Operation of Military Prosecution Affairs cannot be considered again if the convening authority confirms the military court ruling. (2) If the convening authority intends to reduce punishment or exempt the execution of punishment by its confirmation measures, only one of the provisions must be applicable, or if this Act does not provide for the crime committed by the person subject to the application of this Act under Article 4-1 of the Military Criminal Act, it cannot be a ground for the competent authority to determine mitigation of punishment by its confirmation measures under Article 5-1 of the Criminal Act, and the reasoning behind the original judgment does not necessarily require the competent authority to recognize mitigation of punishment by way of Article 5-1 of the Criminal Act, and it cannot be deemed that the competent authority cannot be acknowledged that the punishment should be reduced by more than six of the provisions regarding mitigation of punishment under Article 5-1 of the Criminal Act, regardless of the fact that the system for confirmation of punishment by the competent authority cannot be seen as a special system for mitigation of punishment under Article 55 of the Criminal Act.

Therefore, it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Il-young (Presiding Justice)