Defendant

Prosecutor

Private iron;

Incheon District Court Decision 2005No5207 Decided February 27, 2006

The prosecutor's appeal is dismissed.

1. Summary of the prosecutor's grounds for appeal;

A. Legal principles

The proviso of Article 62 of the Criminal Act provides that a suspended sentence may not be imposed on a crime committed during the period of three years after the completion or exemption of the execution of a sentence of imprisonment without prison labor or more. Since the purport of the proviso is to prevent recidivism after the judgment becomes final and conclusive, it shall be interpreted that a suspended sentence may not be imposed on a crime committed during the period of the suspended sentence regardless of the expiration of the period of the suspended sentence.

However, the defendant was sentenced to 6 months of imprisonment and 1 year of suspended execution for violating the Military Service Act on February 18, 2005 and became final and conclusive on the 26th of the same month. Since the crime of this case was committed during the period of 8 days or more in total from June 28, 2005 to July 29 of the same year and was committed during the period of 8 days or more, it cannot be sentenced to suspended execution. Thus, the court below erred by misapprehending the legal principles by imposing a suspended execution again, and thereby affecting the conclusion of the judgment.

B. Unreasonable sentencing

In light of the fact that the sentence imposed by the court below (one year of imprisonment, two years of suspended execution) is erroneous in light of the legal principles as seen above, as alleged in the Defendant’s criminal records and the sentence of suspended execution.

2. The judgment of the court below as to the provisional decision of the suspended sentence

The proviso of Article 62(1) of the former Criminal Act (amended by Act No. 7623, Jul. 29, 2005; hereinafter the same) provides that the execution of a sentence shall not be suspended for a person in whose case five years have not passed since his/her imprisonment without labor or heavier punishment was completely executed or since the exemption from the execution of the sentence was made. While the proviso of Article 62(1) of the former Criminal Act provides that a person who is disqualified from the suspension of execution shall not be sentenced at the time of sentencing, the provision of Article 62(1) of the former Criminal Act provides that the execution of a sentence shall not be suspended for a crime committed within three years after the completion or exemption of the execution of the sentence shall not be included in the grounds for the suspension of execution. On the other hand, the provision of Article 62(1) proviso of the former Criminal Act provides that a person who is sentenced to the suspension of execution shall not be subject to the suspension of execution, but shall be interpreted as including the case where the suspended sentence was sentenced for more than six years after the revision of the Criminal Act.

3. Judgment of the court below

A. Judgment on the misapprehension of legal principles

Article 62(1) of the Criminal Act (amended by Act No. 7623, Jul. 29, 2005) provides that “In order to examine the purport of the suspended sentence of recidivism after the judgment, the standard of the requirements for the disqualifications for suspended sentence shall be determined as “a case where a sentence of imprisonment without prison labor or heavier punishment is rendered for a crime committed during the period of three years after the completion or exemption of the execution from the time when the judgment sentenced to imprisonment without prison labor or heavier punishment became final and conclusive.” Since the term “a judgment sentenced to imprisonment without prison labor or heavier punishment” includes a judgment sentenced to suspended sentence

However, according to Article 65 of the Criminal Act, the sentence of a suspended sentence shall lose its effect when the period of the suspended sentence expires without the invalidation or cancellation of the sentence after the sentence was sentenced. Thus, even if the sentence cannot be sentenced again as a crime under the original suspended sentence, even though the period of the suspended sentence has expired and the sentence becomes null and void after the lapse of the period of the suspended sentence, the sentence becomes null and void, and thus, the new suspended sentence may be sentenced (Article 63 of the Criminal Act also provides that "where a person who has been sentenced to the suspended sentence was sentenced to imprisonment without prison labor or heavier for a crime committed intentionally during the period of the suspended sentence and the judgment becomes final and conclusive after the sentence becomes void, the sentence of the suspended sentence shall become void even if a crime under the suspended sentence is committed,

As for the case where the period of probation has elapsed after the crime committed during the period of probation, a prosecutor does not change the fact that the sentence was sentenced under Article 65 of the Criminal Act even if the sentence was invalidated, and thus, he cannot again sentence the suspended sentence. However, Article 65 of the Criminal Act argues to the purport that even if a new sentence was sentenced in the above case, the previous sentence has already ceased to have effect due to the completion of the suspended sentence, so the previous sentence has no intention to ensure the invalidation of the suspended sentence under Article 63 of the Criminal Act. However, the purport of Article 65 of the Criminal Act that "the sentence loses its effect" under Article 65 of the Criminal Act is that the legal effect of the sentence has ceased to exist, and it is reasonable to view that the effect of the sentence should also be interpreted differently as the grounds for disqualification of the suspended sentence and the requirements for the invalidation of the suspended sentence, contrary to the prosecutor's assertion is rejected.

Therefore, the court below's decision to suspend the execution of the crime of this case cannot be justified and there is no error in law. Thus, the prosecutor's appeal pointing this out is without merit.

B. Determination on the assertion of unfair sentencing

Although the defendant was sentenced to six months of imprisonment and one year of suspended sentence for the same crime, and again committed the crime in this case during the period of suspended sentence, considering all the sentencing conditions revealed in this case, such as the fact that the defendant can be sentenced to suspended sentence, and his mistake is divided in depth, the court below's sentence is deemed appropriate, and there is no reason for the prosecutor's appeal for this part of this case.

4. Conclusion

Therefore, the prosecutor's appeal is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Hong Ho-ho (Presiding Judge)