Whether Article 38(2) of the Criminal Act concerning the punishment of substantive concurrent crimes applies mutatis mutandis to the punishment of substantive concurrent crimes, and where only the defendant appealed against the judgment that was sentenced to six months of imprisonment without prison labor at the court of first instance concerning the crime of occupational injury and injury in the court of first instance, whether it violates the principle of prohibition of disadvantageous alteration to the disadvantage that sentenced one year of suspension of execution in the court of appeal for

In the punishment of concurrent crimes, the provisions of Article 38(2) of the Criminal Act concerning the punishment of substantive concurrent crimes cannot be applied mutatis mutandis, and the sentence of imprisonment to the defendant who committed the crime of occupational injury and bodily injury only which is sentenced to imprisonment without prison labor and fines is illegal, and the first instance court has sentenced the defendant to six months of imprisonment without prison labor even though the defendant appealed, it is against the principle of prohibition of disadvantageous change under Article 427 of the Military Court Act to reverse the judgment of the first instance court and a suspended sentence of one year for six months of imprisonment with prison labor.

Defendant

Military prosecutor;

(National)Attorney Lee Jae-sung

The Army, High Military Court Decision 75 High Military Air Port70 delivered on March 7, 1975

The original judgment is reversed, and the case is remanded to the Army, High School, and Military Court.

The prosecutor's grounds of appeal are examined.

According to the reasoning of the judgment of the court below, the crime of injury by occupational negligence and the crime of violation of the Road Traffic Act against the defendant in its judgment shall be deemed to be in a commercial concurrent relationship as prescribed in Article 40 of the Criminal Act, and in the case where two crimes of imprisonment without prison labor and imprisonment with prison labor are in a commercial concurrent relationship, even though there is no express provision such as Article 38(2) of the Criminal Act, the court below reversed the judgment of the court of first instance which sentenced the defendant in six months, and sentenced the defendant to a suspended sentence for six months, since the traditional criminal theory, which distinguish between imprisonment and imprisonment without prison labor, adopted the new concept of labor, the impact of labor on mental and physical health, and the liberalization of imprisonment with prison labor, has been a significant argument in the modern criminal policy theory that the punishment of imprisonment with prison labor should be unified, it is clear that the judgment of the court of first instance which sentenced the defendant in its imprisonment with prison labor and the suspended sentence for one year for six months.

Article 40 of the Criminal Code provides that "If a single act constitutes several crimes, the most serious crime shall be committed."

Punishment is defined as "the punishment imposed", and in relation to the punishment for commercial concurrent crimes, substantive concurrent crimes

Article 38 (2) of the Criminal Act, which is a provision on punishment for the defendant, shall not be applicable mutatis mutandis. Thus, since the crime of injury by occupational negligence and fine, which is a crime committed in the judgment of the court below, which is a crime punishable against the defendant, is committed only by imprisonment without prison labor and fine, and since imprisonment with prison labor is not imposed, the court below sentenced the defendant for six months. In addition, according to the records, although it is evident that only the defendant appealed against the defendant in the first instance court for six months, the court below reversed the judgment of the court of first instance and sentenced the defendant for one year of a suspended sentence in six months, and the suspended sentence is not invalidated or cancelled after the sentence was sentenced, and if the suspended sentence is invalidated or cancelled, the sentence becomes null and void, and the defendant should be sentenced to the execution of the sentence, it cannot be considered that the suspension of the execution of the sentence of the court below conflicts with the above Article 27 of the Criminal Procedure Act, which is the first instance court's imprisonment without prison labor and the principle against the disadvantage of the defendant in the judgment of the court below.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Appellate Forces. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-hee (Presiding Justice)