[1] In the case of re-offending during the period of probation under the Criminal Code amended on July 29, 2005, whether the probation may be sentenced again (negative)

[2] The meaning of "actual sentence" above the imprisonment without prison labor under Article 63 of the Criminal Code, which is a provision on the invalidation of suspended sentence

[3] The case reversing the judgment of the court below that sentenced the defendant who intentionally committed a crime during the period of suspension of execution

[1] The term "in the case of recidivism during the period of suspension of execution" refers to a criminal policy standpoint that if such interpretation is not made, the crime committed during the period of suspension of execution shall not be deemed to be significantly inconsistent with the purpose of the suspended execution system, which aims at "prevention of recidivism" under the uncertain condition of the suspended execution during the period of suspension of execution, and the proviso of Article 62 (1) of the Criminal Act amended on July 29, 2005 shall reduce the period of grounds for suspension of execution and change the base point of time. Rather, the above provision shall not be construed as a suspension of execution even if the judgment becomes final and conclusive immediately with the above provision as to the crime committed during the period of grounds for suspension of execution after changing the base point of time of the suspended sentence to the crime not at the end of the sentence but at the end of the sentence, and Article 63 of the amended Criminal Act, along with the above provision, provides that "where a person who was sentenced to the suspended sentence, has been sentenced to imprisonment without prison labor or heavier punishment for the crime committed intentionally during the period of suspension of execution, the sentence shall not be interpreted as a second sentence.

[2] In the case of the so-called ex-post concurrent crimes, it is necessary to interpret the so-called “malary punishment” above under Article 63 of the Criminal Act prior to the amendment to the effect that the previous suspended sentence becomes null and void due to the occurrence of the latter suspended sentence. However, Article 63 of the Criminal Act after the amendment is premised on the premise that legislators can render a sentence for a subsequent suspended sentence in the case of a crime of ex-post concurrent crimes, and on the premise that the legislators may only use the phrase “actual punishment” for the purpose of clarifying the above limited interpretation in the opportunity to amend the Criminal Act. Therefore, under Article 63 of the Criminal Act after the amendment, the phrase “actual punishment” should not be indirectly interpreted to allow the suspended sentence in the case of a crime of ex-post concurrent crimes as well as re-offending during the suspended sentence, and the said phrase should not be interpreted to have any special provision to the effect that the previous suspended sentence is not effective due to the premise that the suspended sentence should not be allowed even in the case of re-offending of a crime during the suspended period.

[3] The case reversing the judgment of the court below that sentenced the defendant who intentionally committed a crime during the period of suspension of execution

[1] Articles 62(1) and 63 of the Criminal Act / [2] Articles 62(1) and 63 of the Criminal Act / [3] Articles 62(1) and 63 of the Criminal Act

[1] [2] Supreme Court en banc Decision 87Do2365 delivered on September 12, 1989 (Gong1989, 1422)

Defendant

Prosecutor

Continued Treatment

Daegu District Court Decision 2005Ra1325 Decided August 11, 2005

1. The judgment below is reversed.

2. The defendant shall be punished by a fine of KRW 10 million.

When the defendant does not pay the above fine, the defendant shall be confined in the workhouse for the period calculated by converting 50,000 won into one day.

The provisional payment of the amount equivalent to the above fine shall be ordered.

1. Summary of grounds for appeal;

In cases where a person who was sentenced to a suspended sentence and was finally sentenced to a final judgment re-offending during the suspended sentence (hereinafter referred to as "re-offending during the suspended period"), the court below rendered a new suspended sentence against the defendant who re-offending during the suspended period, as in the previous case, even after the proviso of Article 62(1) of the Criminal Act on the grounds for disqualification for the suspended sentence was amended by Act No. 7623 on July 29, 2005, notwithstanding the fact that the latter cannot again be sentenced to a suspended sentence as in the previous case, the court below rendered a new suspended sentence

2. In cases of re-offending during the grace period, whether it is permitted under the revised Criminal Act to re-suspension a suspended sentence;

A. Judgment of the court below

The court below found the defendant guilty of the facts charged of larceny, and sentenced the defendant to six months of imprisonment with prison labor or more, and suspended its execution for two years. Article 63 (Invalidation of Suspension of Execution) of the amended Criminal Act, along with the above provision, provides that the crime committed by a person who is subject to suspended execution and the judgment becomes final and conclusive as a result of the crime committed intentionally during the period of suspended execution, shall be deemed as a cause for invalidation of the suspension of execution, and it shall be deemed as the premise that the sentence of suspended execution can be sentenced again in the case of recidivism during the period of suspended execution. As such, the revision of Article 62 (1) (Requirements for Suspension of Execution) of the Criminal Act after the revision of the grounds for disqualification of suspended execution shall be interpreted as a new interpretation that "the imprisonment without prison labor or heavier" as referred to in the proviso of Article 62 (1) of the Criminal Act refers to "the imprisonment without prison labor or

B. Determination of party members

In light of the above, the proviso of Article 62(1) of the Criminal Act (hereinafter “former provision”) provides that “where a person in whose case five years have not passed since his/her imprisonment without labor or greater punishment was completely executed or since exemption from its execution was made, the person shall be disqualified for the suspension of execution.” The proviso of Article 62(1) of the same Act (hereinafter “new provision”) provides that “where a person is sentenced to imprisonment without labor or greater punishment for a crime committed within three years after the completion or exemption from the execution of the sentence becomes final and conclusive, the person shall be disqualified for the suspension of execution.” This provision provides that “where a person is sentenced to imprisonment without labor or greater punishment for a crime committed within five years after the completion or exemption of the execution of the sentence, five years have not passed since the completion or exemption of the execution” (the period from the final and conclusive judgment to five years after the completion or exemption of the execution), the term “where the sentence becomes final and conclusive” as well as the term “where a person becomes subject to disqualification or exemption from the execution of the sentence becomes final and conclusive,” shall be construed as “where the sentence becomes final and conclusive.”

However, the above Supreme Court Decision (Majority Opinion and Dissenting Opinion) re-examines the precedents established by the previous lower court and the Supreme Court that no sentence may be imposed in the case of recidivism during the grace period by extensively interpreting that “a person in whose case five years have not passed after the completion of, or exemption from, a sentence of imprisonment without prison labor or a heavier punishment” as stated in the former provision includes “a person in whose case the probation period has not passed after, the sentence was sentenced.” If the person who received the final judgment of a suspended sentence fails to do so, if he/she obtains final judgment after re-offending the sentence during the grace period, the sentence becomes void and the suspended sentence has expired without the invalidation or revocation of the suspended sentence, and as such, it does not conform with the purpose of the suspended sentence system which provides for “the prevention of re-offending in the final and conclusive state of the suspended sentence” as stated in the former provision, and thus, it is deemed that there is no reasonable ground for re-offending the suspended sentence in light of the purpose of the current criminal law which provides for disqualification for the suspended sentence at the time when the new sentence is amended.”

However, Article 63 of the Criminal Act after the revision uses the phrase "actual sentence" above, as it has been invoked as a legal basis for interpreting that the judgment of the court below, in the case of recidivism during the grace period, may be sentenced again. Thus, it is doubtful whether the revised Criminal Act stipulates "where a person is subject to a suspended sentence of imprisonment without prison labor or heavier punishment for a crime committed during the grace period," and therefore, it does not indirectly allow the suspended sentence for recidivism during the grace period, not for ex post concurrent crimes, but for recidivism during the grace period.

Therefore, Article 63 of the Criminal Act, which uses the phrase “actual sentence” above for the reason for invalidation of the suspended sentence after the amendment, requires to be limited to “actual sentence” above the above imprisonment without prison labor or more for the reason for invalidation of the suspended sentence. In relation to the interpretation of the proviso of Article 62(1) of the Criminal Act prior to the amendment, the above Supreme Court ruling that in case of ex post concurrent crimes with regard to the interpretation of the proviso of Article 62(1) of the Criminal Act prior to the amendment, the suspended sentence may be sentenced differently from the case of recidivism during the suspended sentence. Meanwhile, Article 63 of the Criminal Act prior to the amendment provides that “when the judgment becomes final and conclusive after receiving a sentence of imprisonment without prison labor or more during the suspended period,” the above provision is applicable only to ex post concurrent crimes with the text of the Criminal Act, and thus, it is not necessary to indirectly limit the existing suspended sentence due to the subsequent suspended sentence, but also to interpret the provision under the premise that the above provision should not be deemed as a new provision under the premise that the foregoing provision should not be applied to the Majority Opinion.

In addition, Article 63 of the Criminal Act after the amendment provides that "when a sentence of imprisonment without prison labor or heavier punishment has become final and conclusive due to a crime committed during the grace period," the above provision is not applicable to a crime of ex post facto concurrent crimes in the text of "a crime committed during the grace period," and as long as the suspension of execution is invalidated as limited to a crime of re-offending during the grace period even under the text of the law, it is entirely necessary to use the phrase "actual punishment" which is highly likely to be invoked as a legal ground for misunderstanding that "as for a crime of re-offending during the grace period under the amended Criminal Act, even in the case of a crime of probation under the amended Criminal Act, it shall be limited to a crime of re-suspension during the grace period." Thus, this cannot be deemed as a legislative failure.

3. Conclusion

Thus, the court below sentenced the defendant who is not allowed to be sentenced to the remaining suspended sentence by misunderstanding the legal principles as to the grounds for disqualification for suspended sentence. Thus, the judgment below is erroneous in the misapprehension of law as to the judgment, and the prosecutor's appeal pointing this out is justified, and the judgment below is reversed in accordance with Article 364 (6) of the Criminal Procedure

In addition to correcting the “Nonindicted ○○○○” of the facts constituting the crime of the lower judgment as “Nonindicted ○○○○,” the same as indicated in each corresponding column of the lower judgment. As such, all of them are cited in accordance with Article 369 of the Criminal Procedure Act.

1. Relevant Articles of the Criminal Act and the selection of punishment;

Article 329 of the Criminal Code, Selection of Fines

2. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

3. Order of provisional payment; and

Article 334(1) of the Criminal Procedure Act

4. Reasons for sentencing;

① Since 1980, the crime of this case was committed by using the vehicle in which the victim was committed, the value of the stolen goods is considerably significant, ② the defendant appears to have been sentenced to 7 times suspended sentence due to the violation of the Punishment of Violences, etc. Act for 24 years since 1980, ③ the defendant's anti-social and legal standing appears to be so long as he was sentenced to 1 year and 6 months of imprisonment, and ③ the defendant committed the crime of this case at approximately 1 month after being sentenced to 3 years of suspended sentence, but the defendant was sentenced to 1 year and 3 years of suspended sentence. However, the crime of this case was committed in a somewhat contingent manner at the construction site where the defendant was working, and the article was recovered from the victim, ② the defendant expressed his intention not to punish the defendant, ③ the defendant was unable to have been sentenced to imprisonment with prison labor for more than 5 years, and ③ the defendant was sentenced to 5 years of imprisonment with prison labor for more than 5 years, and the defendant was sentenced to 5 years of imprisonment with prison labor.

Judges Kim Chang-sub (Presiding Judge)