Whether a suspended sentence may be sentenced again to a person for whom the period of suspended execution has not elapsed (negative with qualification)

The meaning of "a person in whose case five years have not passed since the completion of, or exemption from, a sentence of imprisonment without prison labor or more" under the proviso of Article 62 (1) of the Criminal Act refers to "a person in whose case five years have not passed since the completion of, or exemption from, the execution of a sentence" does not mean "a person in whose case five years have not passed since the completion of, or exemption from, the execution of a sentence, but also to a case where the suspension of the execution has not passed since a sentence was sentenced for, a concurrent crime under Article 37 of the Criminal Act committed by a certain person: Provided, That where a suspended sentence was sentenced for either of the concurrent crimes committed by a certain person and the sentence became final and conclusive as a result of a trial at a separate procedure, it would be unreasonable that the above crimes would lose balance between cases where a suspended sentence was rendered at the same time with the case where a person who was sentenced to a suspended sentence was sentenced at the same time during the same procedure, and thus, it would not be included in the case where the person who was sentenced at the same time for a special crime under Article 37 of the Criminal Act was sentenced.

Articles 37 and 62(1) of the Criminal Act

Supreme Court en banc Decision 87Do2365 Decided September 12, 1989 (Gong1989, 1422) Supreme Court Decision 88Do824 Decided October 10, 1989 (Gong1989, 1708) Supreme Court Decision 91Do473 Decided May 10, 1991 (Gong1991, 1680) Supreme Court Decision 92Do1246 Decided August 14, 1992 (Gong192, 2714) (Gong196Mo118 Decided October 13, 197)

Defendant

Prosecutor

Seoul District Court Decision 2001No3511 Decided October 18, 2001

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

The court below held on December 9, 198 that the defendant was sentenced to one year and six months of imprisonment for violation of the Punishment of Violences, etc. Act at the Suwon District Court and three years of probation, and that the defendant committed the crime of this case during the grace period, the court below held that it is reasonable to interpret that the meaning of "the defendant was sentenced to imprisonment or more severe punishment than imprisonment without prison labor" under Article 62 (1) of the Criminal Act in light of the institutional purport of the suspended sentence, the proviso of Article 62 (1) of the Criminal Act that provides the grounds for disqualification, and the language and form of relevant provisions, etc.

However, the meaning of "a person in whose case five years have not passed since his/her imprisonment without labor or greater punishment was completely executed or exempted" as provided in the proviso of Article 62 (1) of the Criminal Act refers to "a person in whose case five years have not passed since his/her imprisonment without labor or greater punishment was completely executed or exempted, not to refer only to a person in whose case five years have not passed since the completion of or exemption from the execution of the sentence, but also to a case where the grace period has not passed since the sentence was sentenced: Provided, That where several concurrent crimes under Article 37 of the Criminal Act, which a person committed, were prosecuted before or after the suspended sentence was sentenced in separate proceedings and the sentence became final and conclusive, the suspended sentence cannot be sentenced again in the judgment for the remaining crimes, then it would be unreasonable that the above crimes would lose balance between cases where the suspended sentence was sentenced simultaneously with those where the suspended sentence was sentenced simultaneously for the same procedure, and thus, the meaning of "a person who was sentenced" would not include a case where the suspended sentence was sentenced concurrently for 198-19 years or more.

Nevertheless, there is an error in the misapprehension of the legal principle of the proviso of Article 62 (1) of the Criminal Code, which sentenced the defendant to the suspended sentence for whom the period of the previous imprisonment had not lapsed, and the ground of appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-dam (Presiding Justice)