[1] Meaning of Article 62 of the Criminal Code Article 64 (1) of the Criminal Code after being sentenced to suspended sentence, and in a case where there is no knowledge of the grounds for disqualification of suspended sentence before the judgment of suspended sentence became final and conclusive, it constitutes "when the grounds for suspended sentence of Article 62 of the Criminal Code were discovered after being sentenced to suspended sentence of Article 64 (1) of the Criminal Code (negative)

[2] The case holding that the suspension of execution cannot be revoked on the ground that the prosecutor had no knowledge of the existence of a criminal record, which was subject to the grounds for disqualification, in the investigation stage before the judgment of the suspension of execution became final and conclusive, even though there was no objective circumstance that can naturally identify the

[1] Article 64 (1) of the Criminal Code provides that the suspension of execution shall be revoked in a case where the grounds for the proviso of Article 62 of the Criminal Code are discovered after the suspension of execution is sentenced, which is, the grounds for the proviso of Article 62 of the Criminal Code after the suspension of execution is sentenced, namely, the case where the above grounds are discovered only after the decision of the suspension of execution becomes final and conclusive, and where the grounds for disqualification are discovered before the final and conclusive judgment, it shall not be revoked. In this case, the phrase that the grounds for disqualification was discovered before the final and conclusive judgment shall not be clearly referred to the case where the prosecutor clearly becomes aware of the grounds for disqualification, but it shall include the case where the prosecutor does not know of the objective situation where the grounds for disqualification are known.

[2] The case holding that the suspension of execution cannot be revoked on the ground that the prosecutor had no knowledge of the existence of criminal records, which are grounds for disqualification, in the investigation stage, before the judgment of the suspension of execution became final and conclusive, even though there was no objective circumstance that can naturally know the existence of criminal records

[1] Articles 62(1) and 64(1) of the Criminal Act, Article 335 of the Criminal Procedure Act / [2] Articles 62(1) and 64(1) of the Criminal Act, Article 335 of the Criminal Procedure Act

[1] Supreme Court Order 76Mo12 dated April 14, 1976 (Gong1976, 9136), Supreme Court Order 81Mo4 dated January 19, 1982 (Gong1982, 394), Supreme Court Order 83Mo58 dated January 18, 1984 (Gong1984, 394)

Defendant

Defendant

Attorney Jin Jin-jin

Changwon District Court Order 2001No1 dated April 20, 2001

The order of the court below is reversed. The prosecutor's appeal is dismissed.

1. The record reveals the following facts.

A. On April 13, 1998, the defendant was sentenced to a stay of execution for two years in the month of imprisonment with prison labor for violation of the Punishment of Violences, etc. Act, and obstruction of performance of official duties (hereinafter "the case") on April 21 of the same year on April 13, 1998, and the above judgment became final and conclusive on April 21 of the same year. On June 30, 1999, the above judgment became final and conclusive on July 8 of the same year without knowing that the above final judgment was rendered at the time of sentenced to the same court's violation of the Act on Special Cases concerning the Settlement of Traffic Accidents and the Violation of the Road Traffic Act (hereinafter "the case of violation of the Act on Special Cases concerning the Settlement of Traffic Accidents") against the defendant on June 30, 1999, and the case of violation of the Road Traffic Act (hereinafter "the case of violation of the Road Traffic Act").

B. On November 10, 200, the prosecutor demanded the cancellation of the sentence of this case under Article 64(1) of the Criminal Act, on the ground that the defendant was sentenced to imprisonment without prison labor for one year or two years, and the decision of the suspension of execution for two years, on the ground that it was discovered that the decision of the suspension of execution for ten months or two years was rendered for a reason falling under the proviso of Article 62(1) of the Criminal Act.

C. On October 14, 1998, after the above case was finalized, the Defendant’s resident registration number was corrected or changed (if the Defendant’s resident registration number was corrected, it appears to be to coincide with the number of the family register and the resident registration number of the resident registration number before the correction was made. Whether the Defendant was requested or not by the official authority of an administrative agency). After committing the crime of this case, the Defendant only stated the corrected resident registration number when he was investigated by an investigation agency on April 22, 1999, and stated that the corrected resident registration number was not disclosed, and the investigation agency stated that the Defendant was not guilty, and that there was no criminal record of the corrected resident registration number. However, in the process of inquiry into the Defendant’s driver’s license, the investigative agency did not inquire about the Defendant’s resident registration number recorded in the driver’s license register prior to the correction and bound it into the investigation record (in cases of investigation record). The investigative agency did not inquire about the criminal records that the Defendant stated in the previous resident registration number and the Defendant stated in the resident registration number before correction.

2. The court below revoked the first instance court's decision dismissing the prosecutor's request for the revocation of the sentence of this case against the defendant, on the ground that even if the prosecutor did not refer to criminal records as to the defendant's resident registration number prior to the change of his/her resident registration number, and did not know of the judgment of this case, which was the grounds for disqualification for the suspension of execution as to the above 99 Godan1310 case, due to the prosecutor's failure to inquire about the defendant's resident registration number prior to the change of his/her driver's license register, it cannot be deemed that the case constitutes a case where the prosecutor could have known the criminal records prior to the conclusion of the judgment of the case, which was a hindrance to the suspension of execution prior to the conclusion of the judgment of the case, and revoked the suspension of execution as to the defendant's imprisonment without prison labor.

3. Judgment of the Supreme Court

A. According to Article 64(1) of the Criminal Act, when the grounds for the proviso of Article 62 of the Criminal Act are discovered after the suspended sentence was sentenced, the suspended sentence is revoked. Here, the reason for the proviso of Article 62 of the Criminal Act after the suspended sentence was sentenced, namely, when the execution of a sentence of imprisonment without prison labor or a heavier punishment was completed or exempted, is discovered as a person for whom five years have not passed after the suspended sentence became final and conclusive, and the above reasons are discovered only after the suspended sentence became final and conclusive, and if the grounds for disqualification were discovered before the final and conclusive judgment, it cannot be revoked (see, e.g., Supreme Court Order 76Mo12, Apr. 14, 1976). In this case, the phrase that a prosecutor was discovered before the suspended sentence became final and conclusive does not refer only to the case where the prosecutor clearly becomes aware of the grounds for disqualification, but also includes the case where the prosecutor was unaware of it as an in

B. We examine the case in this case, even though the defendant did not actively disclose the correction of resident registration numbers or the existence of a previous conviction, it was shown in the investigation record that the defendant's resident registration numbers stated in the driver's license register do not coincide with the resident registration numbers stated by the defendant in the process of inquiring about the defendant's driver's license, so if the investigation agency viewed criminal records as the resident registration numbers before the correction, the prosecutor becomes aware of the existence of the previous offense, which becomes the ground for disqualification for the suspension of execution, and the prosecutor could correct the error of the above judgment by means of appeal after the suspended sentence for the above case was sentenced.

Ultimately, in this factual basis, even though there was an objective circumstance that could naturally know the grounds for disqualification at the investigation stage prior to the pronouncement of the suspended sentence in this case, it cannot be deemed that the prosecutor was unaware of such facts. Thus, the judgment of the court below, which received the request for the cancellation of the suspended sentence, cannot be ruled to constitute "when the grounds for the suspension of execution under Article 62 are discovered after the suspended sentence under Article 64 (1) of the Criminal Act was sentenced." In this regard, the judgment of the court below which

4. Meanwhile, this case is deemed to be sufficient for the Supreme Court to judge based on the records of trial and the materials examined up to the original trial, and the Supreme Court directly determines pursuant to Articles 415 and 396 of the Criminal Procedure Act. For the same reason, the public prosecutor's application of this case seeking revocation of the suspension of execution against the re-appellant is without merit, and the decision of the first instance court to dismiss this case is justifiable. Thus, the order of the court below that revoked the decision of the first instance and revoked the suspension of execution of this case is unfair and the prosecutor's appeal is dismissed.

Justices Yoon Jae-sik (Presiding Justice)