Where a crime for which judgment has not yet become final and conclusive cannot be judged concurrently with a crime for which judgment has already become final and conclusive, whether a sentence may be imposed at the same time in consideration of equity and equity in the case of a judgment pursuant to Article 39(1) of the Criminal Act (negative)

Articles 37 and 39(1) of the Criminal Act

Supreme Court Decision 2009Do9948 Decided October 27, 2011 (Gong2012Ha, 1799) Supreme Court Decision 2012Do9295 Decided September 27, 2012 (Gong2012Ha, 1799) Supreme Court Decision 2018Do1733 Decided June 28, 2018

Defendant

Defendant

Attorney Kim Chang-chul

Daegu District Court Decision 2018No1460 decided June 27, 2018

The appeal is dismissed.

The grounds of appeal are examined.

In light of the language, legislative intent, etc. of the latter part of Articles 37 and 39(1) of the Criminal Act, where a crime for which judgment has not yet become final and conclusive cannot be adjudicated concurrently with a crime for which judgment has already become final and conclusive, it is reasonable to interpret that a sentence shall not be imposed, or that the sentence shall not be mitigated or remitted, taking into account equity and equity (see, e.g., Supreme Court Decision 2009Do948, Oct. 27, 2011).

The reasoning of the lower judgment and the record reveal the following facts.

On June 27, 2017, the Defendant was sentenced to six months of imprisonment with labor for a violation of the Act on the Promotion of Construction Wastes and two years of suspended execution, and the judgment became final and conclusive on July 5, 2017 (hereinafter “first preceding conviction”). On October 24, 2017, the Defendant was sentenced to four months of imprisonment with labor for an injury and one year of suspended execution, and the judgment became final and conclusive on November 1, 2017 upon being sentenced to one year of suspended execution (hereinafter “second preceding conviction”) on the grounds that the crime of the second preceding offense was committed in the first preceding offense before the judgment becomes final and conclusive, and that the latter part of Article 37 and Article 39(1) of the Criminal Act should be considered at the same time as the crime of the first preceding conviction, on the grounds that the Defendant was sentenced to punishment by applying the latter part of Article 39 and Article 39(1) of the Criminal Act.

However, according to the records, the crime of this case, which the court below found guilty, was committed after the judgment of the court of first instance became final and conclusive, and since the crime of the second criminal offense committed before the judgment of the court of first instance cannot be judged at the same time from the beginning, the crime of the second criminal offense which was committed before the judgment of the court of first instance becomes final and conclusive, it should be deemed that the sentence cannot be imposed, or the sentence cannot be mitigated or remitted in consideration of equity with the crime of the second criminal

Therefore, the lower court’s determination of the sentence against the Defendant without considering the crime of the second criminal record against the instant crime is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the application of the latter part of Article 37 and Article 39(1) of the Criminal Act.

The Defendant’s appeal is without merit and thus dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Dong-won (Presiding Justice)