Whether a public prosecutor may request the revocation of a suspended sentence where he/she fails to disclose his/her previous conviction which may hinder the suspension of execution prior to the final judgment of the suspended sentence, although he/she could have known it easily.

In a case where the prosecutor already knows the existence of a criminal record, which was a hindrance to the stay of execution, before the judgment on the stay of execution becomes final and conclusive, the prosecutor may not request the cancellation of the stay of execution under Article 64 of the Criminal Act. In light of such purport, the prosecutor may not request the cancellation of the stay of execution in accordance with the procedure of appeal, in a case where the prosecutor knew the existence of such criminal record before the judgment becomes final and conclusive, as well as where the prosecutor did not confirm the previous record due to his failure to confirm the previous record on the criminal records of the defendant, even though he could easily know the existence of such criminal record, and the judgment on the stay

Articles 64 and 62(1) of the Criminal Act

Seoul High Court Order 83Mo58 dated January 18, 1984 (No. 32 ① type 337Gong724No 394)

86Mo2 dated March 25, 1986 (Gong778, 796)

Prosecutor who is Defendant Immediate Appeal

Jinju Branch of the Msan District Court of the first instance ( Order 90 seconds169)

The immediate appeal is dismissed.

1. Review of the records of this case reveals the following facts.

A. On September 6, 198, the defendant appealed to a sentence of imprisonment with prison labor for one year in the case of violation of the Road Traffic Act and sentenced to a suspended sentence of two years on November 25, 198, the defendant was sentenced to a suspended sentence of two years on December 3, 198, and the above sentence became final and conclusive on September 20 of the same year. The above ad hoc support was sentenced to a suspended sentence of two years on September 12, 1989 to the defendant on September 12, 1989, which was under the suspended sentence of the above judgment (the facts of prosecution were the cases involving injury to others on April 9, 1989, which was under the suspended sentence of the above indictment, and was sentenced to a suspended sentence of two years on June 30, 1989, which was sentenced to a suspended sentence of two years on June 20, 198.

B. On July 4, 1990, the prosecutor applied for the cancellation of the suspended sentence for the decision that the suspended execution of the sentence for two years for the defendant's 89 high group748 case was suspended for ten years. The court below rejected the prosecutor's request for the cancellation of the suspended sentence on the ground that the defendant had already known or could have easily known that the suspended execution had already been during the period of two years prior to the suspended execution of the sentence for one year of 88No649 case. The court below rejected the prosecutor's request for the cancellation of the suspended sentence on the ground that the reasons for cancellation of the suspended sentence under Article 64 of the Criminal Act became final and conclusive after the judgment of the suspended sentence became final and conclusive. The prosecutor knew or could easily have known that the above reasons were known to the prosecutor only after the judgment of the suspended sentence became final and conclusive.

2. The summary of the reasons for the prosecutor's appeal (including additional opinions on the submission of the reasons for appeal) is that Article 64 of the Criminal Act provides only the objective facts when the grounds for disqualification for the suspension of execution after being sentenced to the suspension of execution and the defendant was discovered to be disqualified for the suspension of execution after being sentenced to the suspension of execution, and does not provide that the prosecutor does not neglect to confirm the existence of the grounds for disqualification for the suspension of execution before the judgment became final and conclusive, and if the prosecutor cannot request the cancellation of the suspension of execution even if he was aware of the grounds for disqualification for the suspension of execution and could not request the cancellation of the suspension of execution even if he could not easily know the existence of the grounds for disqualification for the suspension of execution, the cancellation of the suspension of execution of sentence is de facto private. It is not the criminal records and the prosecutor does not have an explicit duty to trace and confirm the investigation, and it is evident that the defendant was the person who was not aware of the grounds for disqualification for the suspension of execution before the judgment becomes final and conclusive.

3. A. The meaning of the proviso of Article 62(1) of the Criminal Act does not refer to only a sentence of imprisonment without prison labor or heavier punishment, but also to a case where a suspended sentence is rendered in any of the concurrent crimes under Article 37 of the Criminal Act and the sentence becomes final and conclusive in each of the separate proceedings as a result of a separate prosecution, and a suspended sentence is rendered first in any of the concurrent crimes under Article 37 of the Criminal Act. In a case where a suspended sentence is rendered in violation of such legal principles, the judgment of suspended sentence that is rendered later should be revoked, and the revocation of suspended sentence under Article 64 of the Criminal Act shall not be requested if it is discovered before the judgment of suspended sentence becomes final and conclusive and conclusive after the cause under the proviso of Article 62 of the same Act becomes final and conclusive. This is because, in light of this purport, if a prosecutor already knows the existence of a previous conviction that may hinder the suspended sentence through the appeal procedure, the prosecutor could not know the existence of such request even if the judgment was not known prior to the final and conclusive judgment.

B. According to the records of this case, in response to an urgent inquiry into the preparation of criminal records of the subordinate police station and the senior judicial police officer of the investigation records of the 89 Highest 748 incident, the defendant was charged with bodily injury at the subordinate police station of March 8, 198, and the Cheongdo Police Station of May 22 of the same year was charged with the violation of the Road Traffic Act, and the result of the disposition was recorded before and after the investigation. At the investigation stage of this case, the defendant stated that the judicial police officer had seven criminal records such as injury committed by the subordinate police station of March 8, 198, and was detained on 198. The defendant was sentenced to a suspended sentence of imprisonment with prison labor of 10 years for the same offense, and the result of the above disposition was not known to the court below, and the defendant was sentenced to a punishment of 10 years for a violation of the Road Traffic Act of 198.8 years for the same offense, and the defendant was not sentenced to imprisonment with prison labor of 10 years and 10 days for the same offense of 19.8 years.6 years.

나아가 89고단748 사건의 피고인에 대한 범죄사실은 피고인은 1989.4.9. 18:30경 경남 하동읍 읍내동 소재 고씨밤상회 앞길에서 피해자 공소외인(남, 46세)이 동네 노인들과 윷놀이를 하면서 건방지게 피고인에게 술을 달라고 했다는 이유로 양손으로 피해자의 멱살을 잡아 도로상에 넘어뜨리고 앞가슴을 쥐어박은 다음 오른쪽 주먹으로 피해자의 왼쪽뺨을 세차례 구타함으로써 피해자에게 전치 약 1주간의 우측 대퇴부좌상 등을 가한 것으로서 해당 적용법조는 형법 제257조 제1항 으로 되어 있어 그 법정형은 7년 이하의 징역, 10년 이하의 자격정지 또는 100만원 이하의 벌금( 구 벌금등임시조치법, 법률 제2907호 제4조 제1항 )임이 규정상 명백하다. 검사가 피고인에게 위 처분미상전과를 확인하여 89고단748 사건의 판결선고전에 피고인이 집행유예결격자임이 밝혀졌다 하더라도 범행사실이 경미하고 당사자간에 합의가 이루어진 것이 기록상 분명한 이 사건에서는 위 지원은 벌금형을 선택하여 선고하였을 가능성이 있다할 것이고 위 지원이 실형을 선고하였다고 가정하더라도 항소심에서 보다 관대한 판결을 선고받았을 가능성 역시 배제할 수 없다고 할 것이다.

C. In light of the aforementioned legal principles and a series of facts, etc., it is reasonable to regard the prosecutor’s duty to confirm that the prosecutor’s official duty in charge of investigation and the maintenance of public prosecution, even though there is no express provision for the prosecutor to confirm the previous disposition on criminal records in his criminal records, it is reasonable to regard the prosecutor’s duty as an obligatory incidental duty. In the case of this case where it appears that the prosecutor failed to perform such duty, the existence of criminal records in the 88No649 case, which is a hindrance to the suspension of execution before the final judgment of the case, was easily known, and there is no error in the original decision that determined that the request for the cancellation of the suspended sentence

4. If so, the original decision dismissing the motion to revoke the suspended sentence against the defendant by the prosecutor is just and without merit, the appeal of this case is dismissed as it is so decided as per Disposition.

Judges Lee Young-mo (Presiding Judge)