In sentencing punishment for a crime committed at the time of the enforcement of the former Criminal Code, if the former Criminal Code is applied, it does not constitute grounds for disqualification from probation, but if the current Criminal Code is applied, it constitutes grounds for disqualification from probation, the law applicable

Article 62(1) proviso of the former Criminal Act (amended by Act No. 7623 of July 29, 2005) provides that "a person in whose case five years have not passed since the completion of or exemption from the execution of a sentence after having been sentenced to imprisonment without prison labor or heavier punishment" as grounds for disqualification from the suspension of execution. However, Article 62(1) proviso of the former Criminal Act provides that "a person in whose case three years have not passed since the final judgment sentencing imprisonment without prison labor or heavier punishment became final and conclusive shall be sentenced to a crime committed during the period of three years after the completion or exemption of the execution of the sentence" as grounds for disqualification from the suspension of execution, and Article 62(2) of the Addenda (amended by Act No. 7623 of July 29, 2005) provides that "this Act shall also apply to a crime committed before this Act enters into force: Provided, That this shall not apply where the former penal provision applies to a crime committed in favor of the defendant before the amendment of the former Criminal Act, which constitutes a suspended execution.

Article 62(1) of the Criminal Act, Addenda ( July 29, 2005)(2), Article 62(1) of the former Criminal Act (amended by Act No. 7623, Jul. 29, 2005)

Defendant

Prosecutor

Attorney Seo-cheon et al.

Jeonju District Court Decision 2005No1259 Decided August 30, 2007

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

The grounds of appeal are examined.

The proviso of Article 62(1) of the Criminal Act prior to the amendment by Act No. 7623 of July 29, 2005 (hereinafter “former Criminal Act”) provides that “a person in whose case five years have not passed since the completion of, or exemption from, the execution of, a sentence of imprisonment without prison labor or a heavier punishment imposed upon him/her” as grounds for disqualification from the suspension of execution. However, the proviso of Article 62(1) of the amended Criminal Act provides that “a person in whose case three years have not passed since the completion of, or exemption from, the execution of, a sentence of imprisonment without prison labor or a heavier punishment imposed upon him/her for, a crime committed during a period of three years after the completion or exemption of, the execution of the sentence becomes final” under the proviso of Article 62(1) of the amended Criminal Act provides that “This Act shall also apply to a crime committed before this Act enters into force: Provided, That this shall not apply where the previous provision is favorable to the criminal defendant

According to the records, the defendant was sentenced to three years for the crime of obstruction of performance of official duties at the Jeonju District Court on July 28, 199 and was released from the court on April 21, 2002, and the defendant's crime of this case was committed on November 25, 2004, which was prior to the amendment of the above Criminal Act. Thus, if the previous Criminal Act is applied as of August 20, 2007, when the execution of the above crime of obstruction of official duties was completed, it does not constitute a ground for disqualification for probation after five years have already passed since the execution of the above crime of this case was completed. However, if the current Criminal Act is applied, since the crime of this case constitutes a crime of this case for three years since the crime of this case was committed during the period of three years after the completion of the execution of the sentence of obstruction of official duties, it would be favorable for the defendant to apply the previous Criminal Act, and

Nevertheless, the court below determined that the defendant cannot be sentenced to suspended sentence by applying the amended Criminal Act for the reason that the Criminal Act was amended after the judgment of the court of first instance was rendered. Thus, the court below erred in the misapprehension of law and affected the conclusion of the judgment. The ground of appeal on this point is with merit.

Therefore, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)