Even if the execution of imprisonment with prison labor is completed and the criminal record which has completed the execution of the said sentence is pardoned even if the person commits another crime within three years, it does not constitute a repeated crime.

On January 26, 1962, the defendant was sentenced to 6 months of imprisonment for a crime of intrusion at Seoul High Court, and the execution of the sentence was terminated around that time, but it is obvious that he was relieved of it by a general amnesty declared by Order 1678 of December 14, 1963. Thus, repeated crime cannot be aggravated.

Article 35 of the Criminal Act

Defendant 1 and one other

Seoul District Court (63Da1650)

Of the judgment of the court below, the part on Defendant 1 is reversed.

Defendant 1 shall be punished by imprisonment with prison labor for a period of one and half years.

170 days out of the number of days of detention in the original instance prior to the rendering of a judgment shall be included in the principal sentence of the above accused.

Defendant 2’s appeal of this case is dismissed.

110 days from the number of days of confinement before the pronouncement of this judgment shall be included in the original sentence of the court below against the above accused.

이사건 항소이유는 뒤에 따로 덧붙인 피고인 2 및 피고인 1 변호인 변호사 공소외 1이 써서 낸 각 항소이유서에 적혀져 있는 바와 같은바 피고인 1 변호인의 항소이유의 요지는 첫째 원심판결에는 중대한 사실오인이 있어 판결에 영향을 미친 잘못이 있다. 즉 원심판결은 피고인이 원판결 판시 일시·장소(열차내)에서 열차 승객인 피해자 공소외 2가 피고인의 접근을 피한다는 이유로 소지중인 유리병을 깨뜨려 죽인다고 위협하며 피해자의 두부 수부등을 찔러 전치 2주일을 요하는 위 부위 열창상 및 타박상을 가한 것이라고 판시하여 폭력행위등 처벌에 관한 법률 위반으로 처형하였는데 이는 사실과는 부합되지 않게 사실인정을 한것이며 그 진상인 즉 원판결 판시 일시경 진행하는 열차내에서 피해자 공소외 3(육군대위)이 승차중인 학생들을 선동하여 피고인에 대하여 폭행을 가하게 사수하고 그 결과 피고인은 위 학생들로부터 무수 구타를 당하였으므로 피고인은 공소외 3의 소행이 괘씸하기도 하고 또한 위와 같은 위험에서 모면하여야 되겠기에 깨어진 병을 들고 공소외 3에게 가서 사유를 추궁하는 도중 위 피해자가 스스로 당황하여 손을 좌우로 흔들고 몸부림 치는 바람에 손에 약간의 상처를 입게된 것이다.

At the same time, the truth of the instant case was the same as the above, and the court below was too excessive in 1 and 6 months of imprisonment by considering the Defendant as habitual violence. The summary of the grounds for appeal by Defendant 2 was acknowledged by the court below against the Defendant, and there was no fact that Defendant committed the same crime. However, there was a fact that the Defendant was entering the train in the ruling on the temporary landscape of the original judgment, or that the Defendant was a person who was unaware of, and was able to commit an act of violence by combining with, a person who was unaware of, the Defendant. Although the Defendant was subject to criminal punishment, it is too excessive that the Defendant was punished as the offender of the instant case, the Defendant sought correction thereof, and appealed the appeal.

First, if we examine the reasoning of appeal that there is a mistake of facts in the judgment of the court below among the grounds of appeal of this case by the defendant, etc., and examine the records and examine the various methods of evidence adopted through legitimate evidence examination by the court below, it is sufficient to recognize the facts of this case against the two defendants, as recognized by the court below, and it is impossible to find any errors in the judgment of the court below. Thus, this ground of appeal by the defendant, etc. cannot be accepted, and even if we examine various circumstances, which are the basis for determining the amount of punishment unfair, as to the remaining grounds of appeal by the defendant, etc., which are the health department, the records of this case, and the records of this case, or which are the basis for determining the amount of punishment unfair, it is difficult to accept this ground of appeal by the defendant, etc. as well.

In applying the law of this case to Defendant 1, the court below found that Defendant 1 was sentenced to six months of imprisonment with prison labor at Seoul High Court on January 26, 1962 and completed the execution of the sentence at that time, and applied Article 35 of the Criminal Act to the criminal facts of this case, and applied Article 35 of the Criminal Act to Defendant 1. It is obvious in the judgment of the court below that Defendant was subject to heavy aggravation of repeated crimes. As such, it is obvious that Defendant’s criminal records of this case at the time of the judgment of the court below were pardoned by general amnesty declared as Order No. 1678 of December 14, 1963. Thus, the court below determined that Defendant 1 was not subject to heavy aggravation of repeated crimes as stipulated in Article 35 of the Criminal Act. Thus, this error was erroneous in the judgment of the court below, and it is obvious that such error affected the judgment. Thus, the part of the court below’s judgment of this case as to Defendant 1 cannot be reversed as follows Article 364(1) of the Criminal Act.

(Criminal Facts and Evidence)

The summary of the facts charged against Defendant 1 and the evidence related thereto acknowledged by this court are as follows: (a) all of the statements on the facts charged against Defendant 1 in the statement of the judgment of the court below concerning the facts charged in the statement of the court below and the summary of the evidence taken by the chief of the investigation guidance division of the Ministry of the Interior and Safety of the same accused; and (b) all of the counters to delete the statement of reply from the statement of the same accused in the statement of the facts charged in the statement of the court below; and (c)

(Application of Law)

The so-called the judgment of the court below rendered on Defendant 1 as cited by this court is deemed to fall under Articles 3 and 2 of the Punishment of Violences, etc. Act and Article 257 (1) of the Criminal Act, and therefore, it is deemed that there are reasonable grounds to consider the circumstances of this case, and thus, the defendant shall be punished by imprisonment with prison labor for not more than one year and six months within the scope of a prison term for which discretionary mitigation has been made pursuant to Articles 53 and 55 (1) 3 of the same Act, and one hundred days out of the number of days of detention before the pronouncement of this judgment shall be included in the above principal sentence pursuant to Article 57 (1) of the same Act.

Judges Kim Jung-chul (Presiding Judge) and Lee Jon-hoon