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(영문) 대법원 2007. 1. 12. 선고 2006도5696 판결
[횡령·사문서위조·위조사문서행사·공문서부정행사·도로교통법위반(무면허운전)·사기·폭력행위등처벌에관한법률위반(공동상해)][공2007.2.15.(268),329]
Main Issues

[1] In a case where a judgment imposing imprisonment without prison labor or a heavier punishment for a separate crime becomes final and conclusive after the judgment of the court below was rendered, whether there exist grounds for appeal under Article 383 subparag. 1(b)2 of the Criminal Procedure Act

[2] In a case where the appellate court rendered a judgment after the enforcement of Article 39(1) of the amended Criminal Code that allows the reduction of or exemption from punishment for a crime which has not been adjudicated among concurrent crimes, and the judgment sentencing imprisonment with prison labor for a separate crime became final and conclusive, whether there exists grounds for appeal under Article 383 subparag. 1(b)2 of the Criminal Procedure Act

Summary of Judgment

[1] In principle, the judgment of the court of final appeal, which is the grounds of appeal under Article 383 subparag. 1 of the Criminal Procedure Act, should be determined at the time of the judgment below as to “when there is a violation of the Constitution, Act, order, or rule affecting the conclusion of the judgment,” which is the grounds of appeal under Article 383 subparag. 1 of the Criminal Procedure Act. Thus, if the judgment of the court below rendered a sentence of imprisonment without prison labor or heavier punishment for a separate crime only after the judgment of the court below became final and conclusive, the judgment of the court below cannot be deemed unlawful. The ground of appeal under Article 383 subparag. 2 of the Criminal Procedure Act, “when there is a abolition or change of punishment after the judgment,” refers to the case where the punishment is abolished

[2] In a case where there is a crime which has not been adjudicated among concurrent crimes, in consideration of equity and the case where the crime for which judgment has become final and conclusive at the same time, a sentence shall be imposed on such crime; however, after the revision and enforcement of Article 39(1) of the Criminal Act by Act No. 7623 of July 29, 2005, the judgment of the court below is sentenced; and the judgment of the court below which sentenced the defendant to imprisonment with prison labor for a separate crime becomes final and conclusive after the judgment of the court below which sentenced the defendant was sentenced, there is no ground of appeal among the grounds of appeal under Article 383 subparag.

[Reference Provisions]

[1] Article 39(1) of the Criminal Act, Article 383 subparag. 1 and 2 of the Criminal Procedure Act / [2] Article 39(1) of the Criminal Act, Article 383 subparag. 1 and 2 of the Criminal Procedure Act

Reference Cases

[1] Supreme Court Decision 69Do1736 delivered on December 9, 1969 (No. 17-4, 27) Supreme Court Decision 85Do2514 delivered on January 21, 1986 (Gong1986, 406)

Escopics

Defendant

upper and high-ranking persons

Defendant

Defense Counsel

Attorney Abuse-ho

Judgment of the lower court

Suwon District Court Decision 2006No1699 Decided July 27, 2006

Text

The appeal is dismissed. 40 days out of detention days after the appeal shall be included in the original sentence.

Reasons

The grounds of appeal are examined.

1. In a case where the defendant appealed the conviction of the first instance court on the sole ground of unfair sentencing, and the appeal is dismissed, the appellate court's judgment cannot be deemed as the ground of appeal that there is a violation of the rules of evidence against the rules of evidence, etc.

2. In principle, the court of final appeal, which is the ex post facto review, shall determine “when there is a violation of the Constitution, Act, order, or rule affecting the conclusion of the judgment”, which is the grounds of appeal under Article 383 subparag. 1 of the Criminal Procedure Act, as at the time of the judgment below (see, e.g., Supreme Court Decisions 69Do1736, Dec. 9, 1969; 85Do2514, Jan. 21, 1986). If the judgment of the court below rendered a sentence of imprisonment without prison labor or heavier punishment for a separate crime after the judgment of the court below becomes final and conclusive, it cannot be deemed unlawful that Article 39(1) of the Criminal Act is not applied. Article 383 subparag. 2 of the Criminal Procedure Act, which is the grounds of appeal under Article 383 subparag. 2 of the Criminal Procedure Act, means the case where a sentence is repealed or modified due to the repeal or revision of the law after the judgment of the court below.

Therefore, when there is a crime which has not been adjudicated among concurrent crimes, a sentence shall be imposed on the crime in consideration of equity and the case where the crime for which judgment has become final and conclusive is concurrently adjudicated, but the judgment of the court below on July 27, 2006, which was amended and enforced by Act No. 7623 of July 29, 2005, which was subsequent to the amendment and enforcement of Article 39(1) of the Criminal Act, is sentenced, and the judgment of the court below on August 25, 2006, which sentenced to imprisonment with prison labor for a separate crime of the defendant, becomes final and conclusive only after August 25, 2006, the judgment of the court below does not exist.

In a case where the appellate court rendered a decision prior to the amendment and enforcement of Article 39(1) of the Criminal Act, the Supreme Court’s decision that held that the appellate court’s decision constituted the grounds of appeal under Article 383 subparag. 2 of the Criminal Procedure Act due to the amendment and enforcement of the above provision is inappropriate to be invoked in the instant case on the contrary to the case where the appellate court rendered a decision subsequent to the amendment and enforcement of the

The defendant's assertion that the judgment of the court below cannot be reversed is not acceptable unless the judgment of the court below which sentenced imprisonment with prison labor for a separate crime of the defendant becomes final and conclusive.

Therefore, the appeal is dismissed, and part of the detention days after the appeal is included in the original sentence. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)

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