[1] In a case where multiple types of punishment, which are the heavy penalty for life in a concurrent crime sentenced and finalized, are sentenced to imprisonment for 20 years after the death penalty is reduced, whether a sentence, other than confiscation, fine, and minor fine, may be executed (negative), and whether Article 39(4) of the former Criminal Act, which is the total provision of the term of punishment already executed, applies (negative)

[2] The case affirming the order of the court below which held that where the imprisonment for two years and six months and the imprisonment for life was separately sentenced and confirmed for each of the concurrent crimes, even if the imprisonment for the above imprisonment for life was reduced to twenty years thereafter, the imprisonment for the term of imprisonment for the term of twenty years shall not be added to the imprisonment for the term of twenty years, which was reduced due to the execution of the imprisonment for the term of two years and six months

[1] Article 39(2) and (1) and Article 38(1)1 of the former Criminal Act (amended by Act No. 7623, Jul. 29, 2005) stipulate that where several punishments are imposed and finalized with regard to a case of concurrent crimes, the punishment shall be executed in accordance with the examples of concurrent crimes. Thus, if a serious punishment is a death penalty, life imprisonment, or imprisonment without prison labor for life, it can only be executed, and confiscation, fine, or minor fine is not executed, and it is clear in accordance with the purport of the provision. Thus, even if imprisonment for life corresponding to concurrent crimes has been reduced for 20 years after the death of 20 years, other punishment than confiscation, fine, or minor fine already executed cannot be executed. Meanwhile, Article 39(4) of the same Act, which is the aggregate provisions of the term of punishment already executed, provides that where several punishments have already been executed, the punishment of imprisonment for life should be executed after the lapse of 20 years, and thus, there is no further room for application of the above punishment.

[2] The case affirming the order of the court below which held that where the imprisonment for two years and six months and the imprisonment for life was separately sentenced and confirmed for each crime in the concurrent crimes, even if the imprisonment for the above imprisonment for life was reduced to twenty years thereafter, the imprisonment for the term of imprisonment for the term of twenty years shall not be added to the imprisonment for the term of twenty years, which was reduced due to the execution of the imprisonment for the term of two years and six months

[1] Articles 38(1)1, 39(1), (2), and (4) of the former Criminal Act (amended by Act No. 7623, Jul. 29, 2005); Article 38(2) of the Addenda of the Criminal Act (amended by Act No. 7623, Jul. 29, 2005) / [2] Articles 38(1)1, 39(1), (2), and (4) of the former Criminal Act (amended by Act No. 7623, Jul. 29, 2005); Article 2 of the Addenda of the Criminal Act (amended by Act No. 7623, Jul. 29, 2005)

[1] Supreme Court Order 91Mo54 dated August 9, 1991 (Gong1991, 2379)

Re-appellant

Seoul High Court Order 2005Ro12 dated March 9, 2006

The reappeal is dismissed.

Articles 39(2) and (1) and 38(1)1 of the former Criminal Act (amended by Act No. 7623, Jul. 29, 2005; hereinafter “former Act”) stipulate that where several punishments are imposed and finalized with respect to concurrent crimes, they shall be executed in accordance with the examples of concurrent crimes. Thus, if a serious punishment is death penalty, life imprisonment with or without prison labor for life, or imprisonment without prison labor for life, it can be executed only if the serious punishment is a death penalty, or imprisonment without prison labor for life, or imprisonment with or without prison labor for life, and it can be executed in accordance with the purport of the provision. Thus, even if life imprisonment for concurrent crimes has been reduced to 20 years after the death of 20 years of imprisonment, it can be executed only by the reduced punishment, but it cannot be executed (see Supreme Court Order 91Mo54, Aug. 9, 191).

On the other hand, Article 39(4) of the former Act, which is the aggregate provision of the term of imprisonment already executed, stipulates that the term of imprisonment already executed, if several punishment were to be executed by adding up several punishments, shall be deemed to fall under a part of several punishments, and thus, shall be aggregated. Thus, there is no room to apply in cases where other punishment is not executed more than other punishment. Thus, the same applies even if the above term of imprisonment for life was reduced after the completion

The court below held that since each of the crimes of this case is concurrent crimes and the imprisonment for life was imposed separately for two and a half years and that the sentence of imprisonment for life was finalized, the court below's order of execution of imprisonment for the term of 20 years with prison labor for the term of 20 years and 38 (1) 1 of the former Act should be executed only for the term of imprisonment with prison labor, which is the heavier punishment among them under the provisions of Paragraph (2) of the Addenda of the Criminal Act ( July 29, 2005), Article 39 (1) and (2) of the former Act, and Article 38 (1) 1 of the former Act, and there is no error in the prosecutor's order of execution of imprisonment with prison labor for the term of 20 years after the date when the imprisonment for life was finalized, and even if the imprisonment for the term of 20 years after the expiration of 20 years, it is just in accordance with the above legal principles and there is no error of law by misunderstanding the legal principles.

Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Kang-soo (Presiding Justice)