Notwithstanding the absence of any other crime established after the crime, where the latter part of Article 37 and Article 39(1) of the Criminal Act were stated by mistake in the application of the law, in the absence of an entry of another crime which constitutes concurrent crimes in the entry of the crime, the error or mistake in the entry of the above statutes cannot be deemed to have affected the judgment.

In the case of concurrent crimes under the latter part of Article 37 of the Criminal Act, since the punishment is separately determined and sentenced separately from the crime already established under Article 39 (1) of the Criminal Act and the execution thereof is not recognized under Article 39 (2) of the same Act, the court below held that even though the court below made an error in applying the latter part of Article 37 and Article 39 (1) of the Criminal Act even though there is no other crime established after the crime of this case, since there is no other crime established after the crime of this case, there is no room for applying the punishment for the crime judged unless there is a statement of other crime which is concurrent crimes in the statement of the crime of this case, or there is no possibility for applying the special provision for the execution thereof. Thus,

Articles 37, 39(1) and (2) of the Criminal Act, Article 383 of the Criminal Procedure Act

Defendant

Defendant

Seoul District Court Decision 2000No7837 delivered on February 16, 2001

The appeal is dismissed.

1. Upon examining the relevant evidence in light of the records, the court below's finding the defendant guilty of the facts charged in this case and finding the defendant guilty is just, and there is no violation of law that has adopted evidence without credibility as evidence of guilt or failed to exhaust all necessary deliberations, and with respect to the judgment of the court below of this case where imprisonment with labor for two months was sentenced, the decision of the court below of this case cannot be viewed as the grounds for appeal on the grounds that

2. However, the court below acknowledged the defendant guilty of the facts charged in this case and applied the latter part of Articles 37 and 39(1) of the Criminal Act. However, according to the records, the defendant was indicted for the violation of the Act on the Aggravated Punishment, etc. of Specific Crimes before the crime in this case, and sentenced to imprisonment with prison labor for one year and six months and protective custody at the Seoul District Court, among which the defendant's case was finalized as waiver of appeal. However, only the protective custody case was pending at the appellate court, and there is no obvious crime established after the crime in this case against the defendant. Therefore, the court below acknowledged the relation of concurrent crimes in the latter part of Article 37 of the Criminal Act applied in cases where there is another crime established after the crime in this case without any ground and there is no obvious error in the application of the law. However, in the case of concurrent crimes in the latter part of Article 37 of the Criminal Act, the court below determined separate punishment and sentenced the sentence separately for the execution of the crime in this case, and there is no room for the court below to accept the latter part of Article 37(1) of the Criminal Act.

3. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-sik (Presiding Justice)