[1] The purport of Article 39(1) of the Criminal Code stipulating that "a sentence shall be imposed on a crime which has not been adjudicated among these concurrent crimes under Article 39(1) of the Criminal Code in consideration of equity in the case where the crime is adjudicated

[2] The court's discretion to determine the punishment for concurrent crimes under the latter part of Article 37 of the Criminal Code

[3] In a case where a public prosecution is instituted against a crime for which a judgment of life imprisonment became final and a crime for which the latter part of Article 37 of the Criminal Act concurrently crimes are concurrent crimes, whether the punishment shall be exempted in the necessary

[1] The purport of Article 39(1) of the Criminal Act stipulating that a sentence shall not be imbalanced between latter concurrent crimes under Article 37 of the Criminal Act and former concurrent crimes under Article 37 of the Criminal Act, but if there is a crime for which judgment has not been rendered among concurrent crimes, the sentence shall be imposed on the crimes for which judgment has not been rendered “in consideration of equity with the case where the relevant crime and the crime for which judgment has become final and conclusive at the same time,” is that: (a) the punishment for the crimes for which judgment has not been rendered after setting the total penalty within the applicable range of the applicable range calculated by applying Article 38 of the Criminal Act is imposed; or (b) the punishment for the crimes for which judgment has not been rendered after deducting the punishment for the crimes for which judgment has become final and conclusive from the total punishment is imposed; (c) if the total sum of the applicable sentences for the two crimes falls within the applicable range of the applicable range computed by applying Article 38 of the Criminal Act, it may be contrary to the principle of res judicata; and (d) the scope of sentence for latter concurrent crimes sentenced after the final judgment becomes final and conclusive.

[2] A court which adjudicates on latter concurrent crimes under Article 37 of the Criminal Act may determine the punishment for latter concurrent crimes within the scope of punishment for latter concurrent crimes by taking into account equity in cases where a judgment is rendered at the same time for a crime for which judgment has become final and a crime for latter concurrent crimes and a crime for which judgment has become final and conclusive. The total sum of punishment for such crime and a crime for which judgment has become final and conclusive falls within the scope of punishment for latter concurrent crimes calculated by applying Article 38 of the Criminal Act with regard to two crimes, not subject to restrictions on determining punishment for latter concurrent crimes. Whether to reduce or exempt punishment for latter concurrent crimes can, in principle, be determined at the discretion of the court which

[3] In a case where a public prosecution has been instituted against a crime for which judgment is made definite for life and a crime relating to the latter concurrent crimes under Article 37 of the Criminal Act, the court may determine the punishment for latter concurrent crimes within the applicable range for latter concurrent crimes in consideration of equity and the concurrent crimes where two crimes are adjudicated simultaneously. Article 38(1)1 of the Criminal Act provides that where the applicable range of punishment for latter concurrent crimes among the former concurrent crimes under Article 37 of the Criminal Act is life imprisonment, the punishment for latter concurrent crimes against which a public prosecution has been instituted need not be exempted from the punishment for latter concurrent crimes.

[1] Articles 37, 38, and 39(1) of the Criminal Act / [2] Articles 37, 38, and 39(1) of the Criminal Act / [3] Articles 37, 38, and 39(1) of the Criminal Act

Defendant

Defendant

Attorney Park Jong-hwan (Korean National Assembly)

Seoul Central District Court Decision 2006No2161 Decided November 2, 2006

The appeal is dismissed.

The grounds of appeal are examined.

1. Article 37 of the Criminal Act provides that several crimes for which judgment has not become final and conclusive (hereinafter referred to as “Concurrent crimes”), or “the crimes for which judgment to face with imprisonment without prison labor or a heavier punishment has become final and the crimes for which judgment has become final and which have been committed before the said judgment has become final and conclusive” (hereinafter referred to as “former concurrent crimes”) shall be deemed concurrent crimes under the former part of Article 38(1) of the Criminal Act, and the former part of Article 38(1) of the Criminal Act provides that punishment for concurrent crimes according to the absorption principle (where the applicable punishment for the most serious crime is death penalty or life imprisonment without prison labor or imprisonment without prison labor for life), aggravation principle (Article 2), and concurrent crimes (Article 39(1) of the Criminal Act shall be sentenced to punishment for such crimes in consideration of equity in cases where the said crime and the judgment have become final and conclusive are simultaneously adjudicated. In such cases, the punishment may be mitigated or exempted.”

While intending to prevent imbalance of punishment between latter concurrent crimes of Article 39(1) of the Criminal Act and former concurrent crimes of Article 39(1) of the Criminal Act, if there is a crime for which judgment among concurrent crimes has not been rendered, “where the whole punishment is determined within the scope of the applicable sentences calculated by applying Article 38 of the Criminal Act to the crime for which judgment has become final and conclusive, and the remaining punishment after deducting the punishment for the crime for which judgment has become final from the whole punishment shall be sentenced for the crime for which judgment has not been rendered,” or “where the total sum of punishment for the crime and the crime for which judgment has become final and conclusive falls within the applicable sentences within the applicable sentences calculated by applying Article 38 of the Criminal Act with regard to the total sum of punishment for the crime, sentence shall not be imposed for the crime for which judgment has not been rendered,” the purport of sentencing is that “where the whole punishment is determined by the foregoing method or the scope of the applicable sentences is limited, it may be against the principle of res judicata, which has already become impossible or considerably difficult to determine the applicable scope of punishment for latter concurrent crimes.

Therefore, the court which tried against latter concurrent crimes may determine the punishment for latter concurrent crimes within the scope of the punishment for latter concurrent crimes by taking into account equity and the case of concurrent crimes for which judgment becomes final and conclusive. The total sum of the punishment for the relevant crime and the crime for which judgment has become final and conclusive is not limited to the punishment for latter concurrent crimes within the scope of the punishment for latter concurrent crimes calculated by applying Article 38 of the Criminal Act with respect to two crimes. Whether to reduce or exempt the punishment for latter concurrent crimes can be determined at the discretion of the court which tried against the relevant crime in principle.

Therefore, even in cases where a public prosecution is instituted against a crime which has become final and conclusive judgment for life and a crime which has a relation of latter concurrent crimes, the court may determine the punishment for latter concurrent crimes within the applicable range for latter concurrent crimes by taking account of equity in cases where two crimes are adjudicated at the same time and equity. In cases where the applicable range of crimes prescribed in the most severe crime among former concurrent crimes under Article 38(1)1 of the Criminal Act is life imprisonment, it is not necessary to exempt the punishment for latter concurrent crimes which have been instituted after taking account of absorption.

If it is necessary to exempt the punishment for the crime committed in the relation of latter concurrent crimes with the crime for which judgment becomes final and conclusive, the statutory punishment for the crime for which judgment becomes final and conclusive shall be exempted. However, at the time of the judgment, the statutory punishment for the crime for which judgment becomes final and conclusive was determined and sentenced to life imprisonment by determining an appropriate sentencing, but at the same time, the statutory punishment for the latter concurrent crimes is not included in death penalty, but if the judgment is rendered at the same time due to the nature of the crime and the criminal nature of the latter concurrent crimes, which are not included in death penalty, and if the judgment is rendered at the same time, the sentence for the latter concurrent crimes shall be exempted from punishment (in this case, it is apparent that the statutory punishment for the latter concurrent crimes cannot be sentenced, rather than that for the latter concurrent crimes, which are final and conclusive, and if the judgment includes death penalty for the punishment for the latter concurrent crimes, and if so, the judgment is rendered at the same time, it would be impossible or considerably difficult to determine the punishment for the latter concurrent crimes by taking into account the aforementioned reasonable and appropriate form of sentencing.

In the same purport, the decision of the court below is just in the decision of the court of first instance that maintained the sentence within the applicable range of latter concurrent crimes in consideration of equity in cases where two crimes are judged at the same time with respect to the crime of this case which is in the relation of life imprisonment and latter concurrent crimes, and there is no violation of the statutes regarding the interpretation and application of Article 39(1) of the Criminal Act.

2. In a case where the defendant appealed a conviction of the first instance court on the sole ground of unfair sentencing, and the appeal was dismissed, the argument that the defendant was in a state of mental disability at the time of committing the crime does not constitute a legitimate ground of appeal, and in this case where imprisonment for less than 10 years was sentenced, the ground that the sentencing of the sentence is unreasonable

3. Therefore, the defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)