Whether a person commits a crime falling under imprisonment without prison labor or heavier punishment during the period of execution of such punishment, or a repeated crime under Article 35 of the Criminal Act is established.

Even if a person is sentenced to imprisonment without prison labor or heavier punishment and has committed a crime equivalent to or greater than that of the imprisonment without prison labor, it cannot be said that the person satisfies the requirements for aggravation of repeated crime.

Article 355 of the Criminal Act

Defendant

Seoul High Court Decision 65 High Military Port212 delivered on June 25, 1965, general water guard for the first instance, and common water guard for the second instance.

We reverse the original judgment.

The case shall be remanded to the Army, High School, and Military Council.

The gist of the first ground for appeal by a state appointed defense counsel is that the defendant was sentenced to imprisonment for 8 months and 2 years for the crime of larceny and the violation of the Pharmaceutical Affairs Act at the Seoul Criminal District Court on May 28, 1964, and therefore, the crime of this case was ultimately committed during the period of suspension of execution, and therefore, the court below's judgment contains an error of aggravation of repeated crimes against the defendant.

I think, according to Article 35 of the Criminal Code, the requirements for aggravation of repeated crime require that the defendant be punished by imprisonment without prison labor or a heavier punishment, and the execution of the sentence is completed or exempted, and even if the defendant again committed a crime equivalent to or greater than imprisonment without prison labor or a heavier punishment during the period of suspension of execution of the sentence, it cannot be said that the defendant satisfies the requirements for aggravation of repeated crime. Accordingly, the court below's contrary opinion cannot be viewed as having committed a violation of law which is likely to affect the judgment, and therefore, the judgment of the court below is reversed on this ground. The appeal is justified. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal without making a decision on the other appeal in accordance with Articles 436, 432, and 439 (2) of the Military Court Act.

[Judgment of the Supreme Court (Presiding Judge) Ma-dong and Han-dong Port Administration