In a case where a sentence is imposed for a crime which has not been adjudicated among the latter concurrent crimes of Article 37 of the Criminal Act pursuant to Article 39(1) of the Criminal Act, whether the punishment provided for in the latter part of Article 37 of the Criminal Act, “the crime for which judgment to be sentenced by imprisonment without prison labor or heavier punishment has become final and conclusive,” is also included in “the previous crime for which suspension of qualification or heavier punishment has been imposed”

Articles 37, 39(1), and 59(1) of the Criminal Act

Supreme Court Decision 2010Do931 Decided July 8, 2010 (Gong2010Ha, 1604) Supreme Court Decision 2017Do10577 Decided September 12, 2017

Defendant

Prosecutor General;

Gwangju High Court Decision 2014No385, 2015No499 decided December 17, 2015

Part of the original judgment, which was suspended from the sentence of fine for the defendant, shall be reversed.

The grounds of emergency appeal are examined.

Article 59(1) of the Criminal Act provides, “In the event a sentence of imprisonment or imprisonment without prison labor for not more than one year, suspension of qualifications or a fine is to be imposed, if the preceding sentence is obvious, taking into account the matters prescribed in Article 51 of the Criminal Act, the sentence may be suspended: Provided, That this shall not apply to a person who has been sentenced to suspension of qualifications or any heavier punishment, except for a person who has been sentenced to a prior conviction, among latter concurrent crimes of Article 37 of the Criminal Act pursuant to Article 39(1) of the Criminal Act.” In the event a sentence is imposed for a crime which has not been adjudicated among latter concurrent crimes of Article 37 of the Criminal Act, “a crime for which a judgment to face with imprisonment without prison labor or any heavier punishment has become final” as stipulated in the proviso of Article 59(1) of the Criminal Act includes “a prior conviction for which

According to the reasoning of the original judgment and the record, on February 13, 2013, the defendant was sentenced to six years of imprisonment by the Gwangju High Court for the crime of violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud), which became final and conclusive on February 21, 2013; the original judgment was sentenced to imprisonment with prison labor for and on June 1, 2013; the defendant was suspended from the sentence of a fine while sentenced to imprisonment with prison labor for the defendant; each of the facts charged against the defendant among the original judgment was a crime committed prior to the final and conclusive judgment; and the original judgment considered the equity with

Examining the above facts in accordance with the legal principles as seen earlier, even if the facts charged in the original judgment were to be committed before the judgment became final and conclusive, the sentence of the above final and conclusive judgment constitutes “the previous conviction subject to the suspension of qualification or a heavier punishment” under the proviso of Article 59(1) of the Criminal Act, and thus, the sentence of the Defendant cannot be suspended in the original judgment. Nevertheless, the postponement of the sentence of the fine to the Defendant constitutes a case

Therefore, the part of the decision of the court below which suspended the sentence of fine against the defendant among the original judgment under Article 446 subparagraph 1 of the Criminal Procedure Act is reversed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min You-sook (Presiding Justice)