The judgment of the court below is reversed.

A defendant shall be punished by a fine of 500,000 won.

The above fine shall not be paid by the defendant.

1. Summary of grounds for appeal;

A. The defendant, as a caregiver, has prevented the victim from selling his arms in a serious body while leaving the victim's resistance, and in light of its circumstances, method, urgency, etc., the defendant's act constitutes a justifiable act and thus, the defendant should be found not guilty. However, the judgment of the court below which found the defendant guilty is erroneous in the misapprehension of legal principles.

B. The Prosecutor’s sentence of the lower court (the suspended sentence of KRW 500,000,000) is too unhued and unreasonable.

2. Determination

A. We examine ex officio prior to the judgment on the grounds for appeal for ex officio determination.

Article 59(1) of the Criminal Act provides, with respect to the suspension of sentence, that “in the event that a sentence of imprisonment without prison labor for not more than one year, suspension of qualification or a fine is to be imposed and the circumstances mentioned in Article 51 are obvious, the sentence may be suspended: Provided, That this shall not apply to a person who has been sentenced to suspension of qualifications or more severe punishment,

Here, the term "previous convictions who have been sentenced to the suspension of qualification or heavier punishment" refers to the criminal records themselves which have been sentenced to the suspension of qualification or heavier punishment, and it is reasonable to interpret that the effect of the punishment is lost or not.

Meanwhile, even if a person who was sentenced to a suspended sentence loses the effect of the sentence after the lapse of the grace period without the invalidation or cancellation of the sentence in accordance with Article 65 of the Criminal Act, this does not lose the legal effect of the sentence and do not lose the fact itself that the sentence had been sentenced. Thus, it should be viewed as a "person having a criminal record who was sentenced to a suspended sentence or heavier punishment", which is the grounds for disqualification of the suspended sentence under the proviso of Article 59(1) of the Criminal Act.

(See Supreme Court Decision 2007Do8269 Decided October 9, 2008, etc.). According to the records of this case, the Defendant is punished by imprisonment with labor for the crime of interference with business at the Busan District Court on June 16, 1993.