Where a punishment prescribed in Article 5-4 (1) or (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes is imposed, but such punishment becomes invalidated pursuant to Article 7 (1) of the Act on the Aggravated Punishment, etc. of Specific Crimes, whether it constitutes “cases where a person is sentenced to actual punishment” as prescribed in Article 5-4 (6) of the Act on the Aggravated Punishment, etc

Article 7(1) of the Act on the Lapse, etc. of Punishment provides that when the period prescribed in each subparagraph of the same paragraph has elapsed since the date on which the execution of punishment was completed or exempted without being sentenced to suspension of qualifications or more severe punishment, the term of imprisonment, imprisonment without prison labor, and imprisonment without prison labor for not more than three years is five years. In a case where punishment becomes invalidated pursuant to the above provision, the legal effect of the sentence imposed becomes extinguished in the future, and thus, the legal effect of the sentence becomes extinguished in the future, and thus, even if the sentence was sentenced pursuant to Article 5-4(1) or (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”), it cannot be deemed that the sentence becomes invalidated pursuant to Article 7(1) of the Act on the Lapse, etc. of Punishment, etc. of Specific Crimes, if the sentence becomes invalidated, it does not constitute “where the sentence is sentenced.”

Article 5-4 (1), (2), and (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes, Article 7 (1) of the Act on the Lapse of Punishment, etc.

Defendant

Defendant

Attorney Kim Sung-hwan

Seoul High Court Decision 2014No2219 decided September 26, 2014

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The grounds of appeal are examined.

Examining the reasoning of the lower judgment in light of the evidence duly admitted by the first instance court, the lower court is justifiable to have determined that the Defendant was guilty of the instant charges by deeming that the instant crime was committed on the ground stated in its reasoning, on the ground as indicated in its reasoning. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on

2. The decision shall be made ex officio;

A. Article 7(1) of the Act on the Aggravated Punishment, etc. of Specific Crimes provides that when the period prescribed in each subparagraph of the same paragraph has elapsed since the execution of a punishment was completed or exempted without being sentenced to suspension of qualification or more severe punishment, the punishment shall be invalidated. In the case of imprisonment with or without prison labor for not more than three years under Article 5-4(1)2 through (3) of the same Act, the period shall be five years. In a case where the sentence becomes invalidated pursuant to the above provision, the legal effect of the sentence becomes extinguished in the future, and thus, the sentence becomes extinct in the future, even though it was sentenced pursuant to Article 7(1) or (2) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”), it cannot be deemed that the sentence becomes invalidated pursuant to Article 5-4(6) of the Specific Crimes Act.

B. On March 27, 1997, the judgment of the court of first instance maintained by the court below was sentenced to imprisonment with prison labor for larceny, etc. on March 27, 1997; on October 7, 2004, the defendant was sentenced to imprisonment with prison labor for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter referred to as "violation of Specific Crimes") (hereinafter referred to as "violation of Specific Crimes"); on November 29, 2012, the Seoul Eastern District Court sentenced one year and six months to imprisonment with prison labor for a violation of the Aggravated Punishment, etc. of Specific Crimes at the Seoul East District Court on February 1, 2014 and completed the execution of the sentence and recognized that the defendant committed a violation of the Aggravated Punishment, etc. of this case on June 11, 2014, and sentenced the defendant to imprisonment with prison labor for a violation of the Aggravated Punishment, etc. of Specific Crimes.

However, according to the records, the Defendant was sentenced to one year and six months for a crime of larceny on October 7, 2004, and completed the execution of the sentence on February 11, 2006. On November 29, 2012, he/she was sentenced to one year and six months for a crime of violation of special family law and on February 1, 2014, and completed the execution of the sentence.

Examining these facts in light of the legal principles on the invalidation of punishment as seen earlier, the sentence imposed on October 7, 2004 by the Defendant for a violation of special family law is deemed to have been invalidated since the five-year period under Article 7(1)2 of the Act on the Lapse of Punishment, etc. was elapsed since February 11, 2006, which was sentenced to imprisonment for a crime of violation of special family law from February 11, 2006 when the enforcement of the sentence was completed.

Therefore, on June 11, 2014, the Defendant can only be deemed to have been sentenced once to a punishment for a violation of the Aggravated Punishment Act (thief) by committing a violation of the Aggravated Punishment Act (thief). Therefore, the Defendant cannot be deemed to have been sentenced twice or more due to a violation of the Aggravated Punishment Act (thief) under Article 5-4(6) of the Aggravated Punishment Act.

Nevertheless, the court below erred by misapprehending the legal principles as to Article 5-4 (6) and (1) and Article 329 of the Criminal Act on the invalidation of punishment and Article 5-4 (6) of the Aggravated Punishment Act by deeming the defendant to be a person who has been sentenced two or more times to a crime of larceny.

3. Therefore, the Defendant’s ground of appeal on unreasonable sentencing is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)