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The judgment below
Of them, the part on Defendant B shall be reversed.
Defendant
B shall be punished by imprisonment for a period of eight months.
Defendant
A.
Reasons
1. The summary of the grounds for appeal that the court below sentenced the Defendants (defendant A: fine of KRW 7 million, and Defendant B: Imprisonment of KRW 8 months) is too unreasonable.
2. Determination
A. We examine ex officio the grounds for appeal by Defendant B prior to the judgment on the grounds for appeal by Defendant B.
In light of the language, legislative intent, etc. of the latter part of Article 37 and Article 39(1) of the Criminal Act, if a crime for which judgment has not yet become final and conclusive could not be judged concurrently with the crime for which judgment has already become final and conclusive, it is reasonable to interpret that the relationship between concurrent crimes after Article 37 of the Criminal Act cannot be established, and that the sentence cannot be imposed, or mitigated or exempted from the punishment in consideration of equity and the case to be adjudicated at the same time pursuant to Article 39(1) of the Criminal Act (see Supreme Court Decision 2014Do469, Mar. 27, 2014). Based on the foregoing legal doctrine, this case’s records are examined as follows: (a) the defendant was sentenced to imprisonment with prison labor for 2 years at the government district court of May 19, 2015 and three years after suspension of execution, and the above judgment becomes final and conclusive on the 27th day of the same month (hereinafter “the above final and conclusive judgment”) and the final judgment of 210 years prior to the final and conclusive judgment of 218.
Therefore, Defendant B’s crime of this case does not constitute the crime of final judgment No. 2 and the crime of single offense after Article 37 of the Criminal Act.
Nevertheless, the lower court determined the sentence against Defendant B in consideration of equity and the case of concurrent judgment pursuant to Article 39(1) of the Criminal Act with respect to Defendant B, and thus, the part of the lower judgment regarding Defendant B cannot be maintained as it is.
B. Judgment on the grounds of appeal by Defendant A