[1] Whether the period prescribed by each subparagraph of Article 7(1) of the former Act on the Lapse of Punishment, etc. shall expire without being sentenced to suspension of qualification or more severe punishment after the completion of punishment (affirmative)

[2] The case affirming the judgment below which applied Article 5-4 (6) of the former Act on the Aggravated Punishment, etc. of Specific Crimes by recognizing the fact that a punishment of imprisonment with prison labor for the same crime was imposed on more than two occasions for the same crime before the ten-year period has elapsed since the execution of the sentence was completed, since the imprisonment with prison labor for the same crime was not invalidated

[1] Article 7(1) of the former Act on the Lapse of Punishment, etc. (Amended by Act No. 10211, Mar. 31, 2010) / [2] Article 7(1)1 of the former Act on the Lapse of Punishment, etc. of Specific Crimes (Amended by Act No. 10211, Mar. 31, 2010); Article 5-4(1) and (6) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010)

[1] Supreme Court Decision 83Do1840, 83Do339 decided September 13, 1983 (Gong1983, 1549) Supreme Court Decision 2010Do8 decided March 25, 2010 (Gong2010Sang, 851)

Defendant 1 and two others

Defendants

Attorney Kim Jong-soo et al.

Seoul High Court Decision 2009No2496 decided December 3, 2009

All appeals are dismissed.

We examine the grounds of appeal.

1. In light of the records, Defendant 1 appealed the judgment of the court of first instance on the sole ground of unfair sentencing as the grounds for appeal, and the appeal was dismissed. In such a case, the Defendant cannot be viewed as the grounds for appeal that there was an error of mistake of facts or of misunderstanding of legal principles with respect to the judgment of the court of first instance (see Supreme Court Decision 2005Do3345, 2005Do14, Sept. 30, 2005, etc.). Furthermore, even if ex officio examination is conducted, the judgment of the court below which affirmed the judgment of the court of first instance which found the Defendant guilty of a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to habitual larceny as stated in the judgment of the court of first instance, and there is no illegality that could affect the judgment of the court below

2. Article 7(1) of the Act on the Lapse of Punishment, Etc. provides that when the period prescribed in each subparagraph of the same paragraph has elapsed since the execution of a sentence was completed or exempted without being sentenced to suspension of qualifications or more severe punishment, the punishment shall be invalidated. In the case of imprisonment and imprisonment without prison labor for more than three years under Article 7(1)1 of the same Act, the period shall be ten years. In light of the content and purport of the aforementioned provision of the Act, in order to invalidate a sentence, the period prescribed in each subparagraph of Article 7(1) of the Act on the Lapse of Punishment, etc. shall expire without being sentenced to suspension of qualifications or more severe punishment after the completion of the sentence (see Supreme Court Decision 83Do1840, 83Do339, Sept. 13, 1983, etc.).

However, in light of the record, Defendant 2 was sentenced to five years of imprisonment for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes on November 27, 1992, and completed the execution of the sentence on January 26, 199. However, Defendant 2 was sentenced to four years of imprisonment with prison labor or heavier punishment for the same crime on December 2, 2004, before the ten-year period under Article 7(1)1 of the Act on the Aggravated Punishment, etc. of Specific Crimes was expired. Thus, the said five-year imprisonment with prison labor is not invalidated.

The court below recognized that Defendant 2 was sentenced to punishment more than twice due to the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and there is no violation of statutes or misunderstanding of legal principles by applying Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes.

3. The grounds that the sentence of the court below is too excessive shall not be a legitimate ground for appeal under Article 383 subparag. 4 of the Criminal Procedure Act, inasmuch as both of the Defendants were sentenced to imprisonment for less than 10 years.

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

Justices Yang Chang-soo (Presiding Justice)