Defendant

Prosecutor

Park Jae-sung

Attorney Yoon Young-young

Suwon District Court Decision 2006Gohap745 Decided July 26, 2006

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not more than ten months.

Four days of detention before the pronouncement of the judgment below shall be included in the above sentence.

1. Summary of the prosecutor's grounds for appeal;

A. Legal principles

Notwithstanding the fact that the defendant cannot be sentenced to suspended sentence because he committed the crime, which was committed during the period of suspended sentence, the court below sentenced the defendant to suspended sentence, which erred by misapprehending the legal principles, thereby affecting the conclusion

B. Unreasonable sentencing

In light of the fact that the defendant committed the principal crime during the period of probation and that the same kind of violence is several times, the sentence (one year of imprisonment and two years of suspended execution) sentenced by the court below against the defendant is too unhued and unfair.

2. Determination on the grounds for appeal

First of all, we examine the prosecutor's argument.

A. The judgment of the court below

The court below did not state any special reasons on the premise that even if a person was sentenced to a suspended sentence and again commits a crime during the period of the suspended sentence, the defendant may again be sentenced to a suspended sentence. On September 24, 2003, the court below sentenced the defendant to three years and six months of the suspended sentence to a violation of the Punishment of Violences, etc. Act (even at night and joint assault) at the Suwon District Court on September 24, 2003, and suspended the execution for two years after the said judgment became final and conclusive on October 2, 2003.

B. Defense Counsel's assertion

(1) Article 62(1) proviso of the former Criminal Act provides that "A person in whose case five years have not passed since a sentence of imprisonment without prison labor or heavier punishment was completely executed or exempted shall not be suspended." Meanwhile, Article 35 of the Criminal Act provides that "a person in whose case five years have not passed since such sentence was completely executed or exempted shall not be suspended." Meanwhile, in interpreting the provision for repeated offense, the provision for repeated offense shall be identical to that for repeated offense under Article 35 of the Criminal Act, and the provision for repeated offense shall be construed as having been completed or exempted, and the provision for repeated offense shall not be regarded as a repeated offense in cases where a person is committed prior to or during the execution of the sentence, which is the date of the judgment of the court below, and as of July 26, 2006, the defendant was sentenced to a punishment for one year and six months since the suspension of execution was already revoked and thus, it is possible to sentence the suspension of execution as prescribed in the proviso to Article 62 of the former Criminal Act.

(2) In addition, even if the revised Criminal Code applies to the defendant, the screening (the preceding sentence) shall be deemed to have become final and conclusive only when the suspended sentence became final and conclusive on April 18, 2006, and if so, the instant crime is deemed to have been committed before the judgment became final and conclusive, so it is possible to sentence suspended execution.

C. Judgment of the court below

First of all, regarding the argument that it is possible to suspend the execution in accordance with the provisions of the former Criminal Act before the revision, the Supreme Court has consistently interpreted the meaning of the proviso of Article 62 (1) of the former Criminal Act to include not only the case where five years have not passed since the completion or exemption of the execution of the sentence, but also the case where the suspension of the execution of the sentence has not passed since the sentence was sentenced (see Supreme Court Decision 92Do1246, Aug. 14, 1992, etc.). ② If the suspended sentence is being executed when the sentence was sentenced for a second offense after the sentence was sentenced after the sentence was sentenced after the completion of the sentence, it is impossible to interpret the suspended sentence again to include the case where the suspended sentence was being executed after the sentence was sentenced after the completion of the sentence. ③ Since repeated crime under Article 35 of the Criminal Act does not coincide with the purpose of the suspended sentence system for the important purpose, Article 62 (1) of the former Criminal Act or the proviso of the former Criminal Act cannot be interpreted to include the same type of imprisonment without prison labor or more than one year after the amendment.

Next, even in cases where the amended Criminal Code is applied, there is no question about the argument that the judgment of suspension of execution is possible, and the judgment can no longer contest the matter of the usual method of appeal, and it leads to the situation where the contents of the judgment can no longer be changed. Since the suspension of execution of a sentence for a crime is expected to be invalidated or cancelled as a matter of course in the event of an occurrence of a cause prescribed by law for rational purposes, the judgment of suspension of execution can also be said to have become final and conclusive without the appeal of the defendant or the prosecutor, or it cannot be said that the judgment of suspension of execution becomes final and conclusive only when the decision of revocation becomes final and conclusive after the decision of revocation of the suspension of execution becomes final and conclusive. Therefore, even under the amended Criminal Code, the defendant cannot be sentenced to suspension of execution.

Therefore, even though the defendant cannot be sentenced to a suspended sentence, the judgment of the court below which sentenced the suspended sentence is erroneous in the misapprehension of legal principles as to the grounds for disqualification from the suspended sentence, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the judgment of the court below is reversed in accordance with Article 364(6) of the Criminal Procedure Act without examining the grounds for appeal of unfair sentencing by the prosecutor, and the following is again decided after pleading.

The summary of the facts charged and the evidence admitted by a party member is the same as that of the judgment of the court below, and thus, it is cited in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 3(1), 2(1) and 3 of the Punishment of Violences, etc. Act, Article 257(1) and 136(1) of the Criminal Act (Appointment of Imprisonment)

1. Mitigation of mental disorders;

Articles 10(2) and 55(1)3 of the Criminal Act. Article 55(2) of the Criminal Act (With respect to Injury by Carrying Deadly Weapons)

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (Consideration to the agreement with the victim, etc.)

1. Inclusion of days of detention in detention;

Article 57 of the Criminal Act

As long as a crime is committed again during the period of probation, punishment shall be determined as ordered in consideration of the fact that the sentence of punishment is inevitable, the agreement with the victim, the cancellation of the suspension of execution, and the long-term sentence shall be imposed.

Justices Kim Tae-Gyeong (Presiding Justice)