[1] Requirements for mitigation or exemption of punishment by applying the latter part of Article 39(1) of the Criminal Act, and the standard for determining "in light of the equity of punishment" under the main sentence of Article 39(1) of the Criminal Act

[2] In a case where: (a) the lower court, with respect to “crime of Desertion of Military Duty, etc.” for which the judgment became final and conclusive and “crime of Robbery,” which constitutes a concurrent crime under the latter part of Article 37 of the Criminal Act, determined a punishment within the applicable sentences computed by the court of original judgment after mitigation of punishment pursuant to Article 39(1) of the Criminal Act; and (b) the execution thereof was deferred, the case holding that the lower court’s measure is justifiable in view of equity with the case where

[1] In light of the purport of Article 39(1) of the Criminal Act that considers equity with the case where a judgment becomes final and conclusive and the latter concurrent crimes provided for in the latter part of Article 37 of the Criminal Act (hereinafter “latter concurrent crimes”), the court’s discretion to judge latter concurrent crimes cannot be unlimited. Thus, mitigation or exemption of punishment by applying the latter part of Article 39(1) of the Criminal Act does not accord with the case where a judgment concurrently decides the crime for which judgment became final and latter concurrent crimes and the case where a judgment for which punishment becomes final and conclusive and the case where a judgment for which punishment is rendered becomes final and conclusive cannot be accepted as it is impossible to render a reasonable and appropriate sentence corresponding to liability. Therefore, in light of the sentence for which a judgment becomes final and conclusive, it is reasonable to view that the latter part of Article 39(1) of the Criminal Act is applicable only where the punishment is lower for latter concurrent crimes or where it is deemed that an additional sentence is not imposed, and where the judgment for which punishment for latter concurrent crimes, including the case where a judgment for latter concurrent crimes becomes final and conclusive, it should be determined as an equitable concurrent crimes.

[2] In a case where, with regard to the crime of escaping military service (a statutory term of not less than two years and not more than ten years) for which a judgment of probation three years has already become final and conclusive, a punishment of imprisonment with prison labor within the applicable range computed by the court below for the crime of robbery, bodily injury (a statutory term of imprisonment or imprisonment with prison labor of not less than seven years), which is related to the latter concurrent crimes under the latter part of Article 37 of the Criminal Act (a statutory term of life or imprisonment with prison labor of not less than seven years), shall be imposed by the law mitigation under Article 39(1) of the Criminal Act, and the execution thereof shall be deferred by the court below for three years, taking into account all the circumstances pertaining to the total sum of each principal sentence sentenced, the possibility of invalidation of suspension of execution, and the crime of injury by robbery, the court affirmed the court below's decision as justifiable in

[1] Articles 37 and 39(1) of the Criminal Act / [2] Articles 37, 39(1), 53, 62(1), 334(2), and 337 of the Criminal Act; Article 55(1)2, 3, and 2 of the former Criminal Act (amended by Act No. 10259, Apr. 15, 2010)

Defendant

Prosecutor

Seoul High Court Decision 2008No1923 decided September 26, 2008

The appeal is dismissed.

The grounds of appeal are examined.

Article 39(1) of the Criminal Act provides that “When there is a crime which has not been adjudicated among the concurrent crimes, punishment shall be imposed on the said crime taking into account equity with the case where the said crime and the crime for which judgment has become final and conclusive are to be adjudicated concurrently. In this case, punishment may be mitigated or remitted.” Thus, in principle, the court which adjudicates on the latter concurrent crimes under Article 37 of the Criminal Act (hereinafter “latter concurrent crimes”) may determine at its discretion as to the relevant crime. The determination of punishment for the latter concurrent crimes including the crime for which judgment has become final and conclusive cannot be made within the scope of punishment calculated by applying Article 38 of the Criminal Act to which the total punishment for the latter concurrent crimes including the crime for which judgment has become final and conclusive is restricted (see Supreme Court Decision 2006Do8376, Sept. 11, 2008). However, in light of the purport of the latter concurrent crimes, it cannot be said that there is no reasonable and reasonable provision that the said punishment will be mitigated or mitigated, and thus, it does not constitute concurrent crimes.

Examining the reasoning of the judgment below in light of the above legal principles, the court below is justified in holding that the defendant's crime of robbery (legal imprisonment for life or for a limited term of not less than 7 years) of this case, which was related to latter concurrent crimes with the crime of escape from military service (legal imprisonment for not less than 2 years but not more than 10 years) for which the judgment of two years of suspended execution was finalized, shall be sentenced to imprisonment for 3 years within the applicable sentencing range as calculated by discretionary mitigation and discretionary mitigation as stipulated under Article 39 (1) of the Criminal Act and the suspended execution of the sentence shall be sentenced to a suspended sentence. In light of all the circumstances related to the crime of robbery in this case, such as the total amount of each principal sentence sentenced, the possibility of invalidation of suspended sentence, and the defendant's age (18 years old only) at the time of the crime of robbery in this case, it can be deemed that the crime of robbery in which the judgment became final and latter concurrent crimes are concurrent crimes at the same time, and contrary to what is alleged in the grounds of appeal, the misapprehension and application of appeal.

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

Justices Lee In-bok (Presiding Justice)