1. The meaning of the proviso of Article 62(1) of the Criminal Act

2.In the case of concurrent crimes, but the suspended sentence for the crimes committed before and after the prosecution is pronounced (affirmative)

1. In the case of the proviso of Article 62 (1) of the Criminal Act, the phrase “after a sentence of imprisonment without prison labor or any heavier punishment has been executed or exempted” shall be read as “after a sentence of imprisonment without prison labor or any heavier punishment has been executed or after the execution has been exempted”;

2. Where a suspended sentence is pronounced for a crime in relation to concurrent crimes, which has been prosecuted before and after the commission of such crimes, and where it is deemed that a suspended sentence has been pronounced at the same time for the crimes committed before and after the commission of such crimes, a suspended sentence may be sentenced in addition to the previous crimes;

Article 62 of the Criminal Act

2. Supreme Court Order 79Mo42 Dated February 29, 1980 (Article 64 (5) of the Criminal Act) (Article 64 (5) of the Criminal Act, Article 64 (5) of the Criminal Act, Article 28 (5) of the Act, Articles 37 (Gong630

Defendant

Defendant

Yeongdeungpo Branch Court of Chuncheon District Court (86 Senior 655 decided May 1, 200)

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for not less than eight months.

However, the execution of the above punishment shall be suspended for two years from the final judgment.

1. The grounds of appeal are examined;

(1) According to Article 62(1) of the Criminal Act, when a sentence of imprisonment or imprisonment without prison labor for not more than three years is imposed and there are extenuating circumstances in light of Article 51, the execution of the sentence may be suspended for a period of not less than one year but not more than five years. According to Article 65 of the same Act, when a grace period expires without the invalidation or cancellation of the sentence after the suspension of execution was sentenced, the sentence shall lose its effect. Thus, the suspension of execution of the sentence is a system that suspends the execution of the sentence sentenced by a judgment of conviction for a certain period and terminates the penal power upon the expiration of the grace period.

(2) Meanwhile, according to the proviso of Article 62(1) of the Criminal Act, “a person who was sentenced to imprisonment without prison labor or a heavier punishment and for whom five years have not passed since the completion or exemption of the execution shall be excluded” shall not be sentenced to a suspended sentence for a person who falls under the said proviso. It shall be examined as to what meaning “after the completion of the execution” or “after the exemption of the execution” as referred to in the said proviso.

First of all, Article 67 of the Criminal Act provides that imprisonment shall be executed by confinement in prison, and Article 68 of the same Act provides that imprisonment without prison labor and detention shall be executed by confinement in prison, and Article 84 of the same Act provides that imprisonment without prison labor and detention shall be executed by confinement in prison, and Article 84 (1) of the same Act provides that the term of punishment shall be calculated from the date when the judgment becomes final and conclusive, and Article 86 of the same Act provides that the release shall be executed by the expiry date of the term of punishment, and Article 76 (1) of the same Act provides that the invalidation of the disposition after parole is revoked, and the execution of the punishment shall be terminated in case of imprisonment for life and when the remaining term of the imprisonment is expired, without prison labor.

Next, Article 1(3) of the Criminal Act provides that the execution of a sentence shall be exempted if the act does not constitute a crime due to the change of law after the judgment became final and conclusive, and Article 77 of the Criminal Act provides that the person who has been sentenced shall be exempted from the execution of a sentence due to the completion of prescription. The exemption from the execution of a sentence other than the above has special amnesty (Article 5(1)2 of the same Act) under the Amnesty Act, and prisoners are released as the effect of exemption from the execution of a sentence in any case or before the expiration of a sentence (Article 54 of the Criminal Administration Act).

In full view of the relevant provisions in the Criminal Act, the law on termination and exemption of punishment, and the penal law on termination and exemption of punishment, if the execution of punishment is completed or exemption of punishment is an expected institution, the concept of termination and exemption of sentence can not be established when suspended execution is sentenced for a certain period of time.

(3) If the provisions of the proviso of Article 62(1) of the Criminal Act are comprehensively newly established under the concept of suspension of execution, termination of execution, and exemption of execution under the above established criminal law, it is reasonable to say that “after the completion of execution or exemption of execution after having been sentenced to imprisonment without prison labor or more severe punishment,” it is “after having completed or exempted execution after having been sentenced to imprisonment without prison labor or more severe punishment.”

With regard to the interpretation of Article 35(1) of the Criminal Act that provides that "If a person who was sentenced to imprisonment without prison labor or heavier punishment and commits a crime heavier than imprisonment without prison labor within three years after the completion or exemption of the sentence, he/she shall be punished as a repeated crime, he/she shall not be punished as a repeated crime." (Supreme Court Decision 65Do676 Decided October 5, 1965; Supreme Court Decision 69Do111 Decided August 26, 1969; Supreme Court Decision 83Do1600 Decided August 23, 1983; Supreme Court Decision 83Do1600 Decided August 23, 1983; and Article 35(1) of the Criminal Act that provides that "If he/she was sentenced to imprisonment without prison labor or more severe punishment and has committed a crime more than a repeated crime, he/she shall not be punished as a repeated crime." (Article 35(1) of the Criminal Act that provides that "after the completion or exemption of the suspended sentence, he/she shall not be interpreted by the same provision."

As to the interpretation of the general provisions of the Criminal Code, strict interpretation is required in accordance with the principle of no punishment without prison labor or heavier. If it is under the legal system that only a person who does not have been sentenced to imprisonment without prison labor or heavier punishment can be sentenced to a suspended sentence, it would also be in accordance with the interpretation of the current law.

(4) Even if it is impossible to interpret the proviso of Article 62(1) of the Criminal Act as mentioned above in the interpretation of the current domestic law, if it is recognized that the crime committed before and after the suspended sentence is rendered in the case where at least several concurrent crimes are prosecuted before and after the suspended sentence is rendered, if the crime committed was judged at the same time before and after the suspended sentence is rendered, it shall be said that another suspended sentence may be rendered for the crime committed before and after the suspended sentence is rendered, and if so, it shall be said that it does not go against the purport of the proviso of Article 62(1) of the Criminal

If such interpretation is not interpreted as above, even if a suspended sentence is rendered at the same time, it cannot be sentenced to any punishment in the period of suspended sentence, and in such a case, if the sentence of suspended sentence becomes invalid under Article 63 of the Criminal Act and is adjudicated at the same time, it would result in harsh results in the suspended sentence for a person who is sentenced to suspended sentence and the subsequent suspended sentence for a person who is sentenced to suspended sentence.

(5) According to the following: (a) the Defendant returned to the instant case and the Defendant’s sentence as determined by the lower court; (b) the evidence examined by the lower court; (c) the Defendant’s statement in the trial; (d) the investigation report prepared by the Prosecutor’s Office in the Prosecutor’s Office in the Young-gu Prosecutor’s Office in Chuncheon District Prosecutor’s Office; (d) a copy of the suspect’s indictment, such as fabrication of private documents against the Defendant; and (e) a copy of the Chuncheon District Court Decision 192No737, Feb. 19, 1987; and (e) a copy of the

(A) On October 25, 1984, Nonindicted Co. 1, 1984, by using one receipt and a claim made by Nonindicted Co. 2, thereby making the business operations of Nonindicted Co. 1 and the staff in charge of Nonindicted Co. 1 and the staff in charge of the same amount be treated as replacing the insurance money of the same amount to be remitted to the same company by the Defendant, thereby acquiring the pecuniary benefits equivalent to that amount;

(B) On October 3, 1985, the defendant acquired financial benefits equivalent to KRW 1,00,00 in the same manner by forging the receipts issued by Nonindicted 3, and embezzled KRW 15,845,045 in total of the principal repaid and interest thereon of Nonindicted 4 and 7, who were in the occupational custody on January 3 of the same year. The defendant was sentenced to imprisonment for one year in the Youngcheon District Court’s Young Branch Branch on September 4, 1986, and one year in the suspension of execution and two years in the defendant’s appeal, but both the prosecutor and the defendant appealed on February 19, 1987, but the above judgment became final and conclusive upon dismissal of both appeals by the court of Chuncheon District on February 19, 1987. The defendant was sentenced to imprisonment in January 20, 198 and was appealed in January 20, and the defendant was appealed in the appellate court.

However, in light of the fact that the defendant's crime of this case, i.e. the crime of this case, the damage amount is merely KRW 3,990,58, and thus, compared with the crime of this case, the victim is not only required to compensate for damage but also did not receive the punishment of the defendant, it can be sufficiently known that if the defendant was tried simultaneously with the crime of this case under the above (B), it is treated as the concurrent crime under the former part of Article 37 of the Criminal Act and is sentenced to the suspension of execution.

(6) Therefore, it is reasonable to discuss the Defendant’s appeal since the sentence imposed on the Defendant is deemed to be too unreasonable.

2. Accordingly, the judgment of the court below shall be reversed pursuant to Article 364(6) of the Criminal Procedure Act, and the judgment shall be rendered again after pleading as follows.

The facts of the crime acknowledged as a member of the party and the evidence related thereto are all found in the original trial. On September 4, 1986, the defendant was sentenced to imprisonment with prison labor for one year, a suspended sentence of two years, and the public prosecutor and the defendant appealed, but each of the appeals was dismissed on February 19, 1987, and the above judgment became final and conclusive. Thus, it is identical to the time of the original trial except for the change of the person for whom the above judgment became final and conclusive.

Article 231 of the Criminal Act provides that Article 234 and Article 2312 of the Criminal Act shall apply to the exercise of a private document in the judgment of the defendant, while Article 234 and Article 2312 of the same Act provides that the fraudulent act of the above investigation document in the judgment of the defendant is subject to concurrent crimes under the latter part of Article 37 of the same Act, since each of the above crimes and the crime for which judgment became final and conclusive are concurrent crimes under the latter part of Article 37 of the same Act, it shall be sentenced to a separate punishment for each of the above crimes for which judgment has not yet been made under Article 39 (1) of the same Act. On the other hand, since each of the above crimes is concurrent crimes under the former part of Article 37 of the same Act, since the above crimes are concurrent crimes under Article 38 (1) 2 and Article 50 of the same Act, the defendant shall be punished by imprisonment for not more than 8 months within the scope of the term of punishment for which punishment is imposed under the judgment of the above Article 62 of the same Act.

It is so decided as per Disposition for the above reasons.

Judge Full-time (Presiding Judge)