Crimes during the suspension period and aggravation of repeated crimes;

Even if a person is sentenced to imprisonment without prison labor or heavier punishment and has committed a crime equivalent to or heavier than imprisonment without prison labor during the period of suspension of such punishment, it shall not meet the requirements for aggravation of repeated crime

Article 35(1) of the Criminal Act

Supreme Court Decision 65Do676 delivered on October 5, 1965, Supreme Court Decision 69Do111 delivered on August 26, 1969

Defendant

Defendant

Attorney Jin-hee

Seoul High Court Decision 83No429 delivered on May 13, 1983

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

The defendant and his defense counsel's grounds of appeal are examined.

1. Reviewing each evidence in the reasoning of the judgment of the court of first instance maintained by the court below compared with the records, it is sufficient to acknowledge the criminal facts against the defendant in the judgment of the court of first instance. The protocol of suspect examination prepared for handling business by judicial police officers against the defendant was not proven by the court of first instance or the court of first instance, and the defendant denies all the charges of rape in the court of first instance, and there is no evidence except the fraudulent part since the defendant denies all the charges of rape in the prosecutor's office and the court of first instance. Thus, there is no ground to discuss the Voluntary nature of each protocol of suspect examination as to the crimes of bodily rape in the court of first instance, and there is no violation of the rules of evidence or misapprehension

2. On November 26, 1981, the court of first instance acknowledged that the defendant was sentenced to a suspended sentence of imprisonment for six months with prison labor for occupational embezzlement by the Seoul District Criminal Court for the crime of occupational embezzlement, and on the application of the law, the defendant constitutes a repeated crime in accordance with the proviso of Article 42 of the Criminal Act as to the crime of Article 35 of the Criminal Act as stated in Article 35 of the Criminal Act, i.e., a repeated offender is subject to heavy punishment according to the limitation of the proviso of Article 42 of the Criminal Act, i.e., the defendant is sentenced to heavy punishment. However, even if the defendant was sentenced to imprisonment without prison labor or heavier punishment and committed a crime of heavier than imprisonment without prison labor during the suspended sentence, this does not include this case (see this case, e.g., Supreme Court Decision 65Do676, Oct. 5, 1965; 69Do11111, Aug. 26, 1969).

Therefore, the judgment of the first instance court of this case is erroneous because it is a case where repeated crime is aggravated if it cannot be aggravated, and the judgment of the court below which maintained it is against the law.

Therefore, the judgment of the court below shall not be dismissed, and it shall be reversed and remanded to the court below. It is so decided as per Disposition by the assent of all participating judges.

Justices Kang Jong-young (Presiding Justice)