[1] In a case where a crime which was committed before a judgment with imprisonment without prison labor or a heavier punishment has become final and has not yet been adjudicated simultaneously with a crime for which judgment has become final and conclusive, whether a sentence may be imposed or a sentence may be mitigated or exempted in consideration of equity and equality in the case where a judgment is concurrently rendered pursuant to Article 39(1) of the Criminal Act (negative

[2] The case holding that the court below erred in the misapprehension of legal principles in a case where the court below affirmed the first instance judgment which rendered a sentence in consideration of equity and the case where the defendant committed the violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, etc. and Promotion of Information and Communications Network Utilization and Information Protection, etc., and the defendant committed the violation of the same Act between the day when the judgment became final and the day when the judgment became final and conclusive and the day when the judgment became final and conclusive

[1] In light of the language, legislative intent, etc. of the latter part of Article 37 and Article 39(1) of the Criminal Act, if a crime for which no judgment has yet been rendered cannot be judged concurrently with the crime for which judgment has already become final and conclusive, it is reasonable to interpret that a sentence shall not be imposed, or that the sentence shall not be mitigated or remitted, taking into account the equity and the case where a judgment is concurrently rendered pursuant

[2] The case holding that in a case where the judgment on the crime A, which was committed by the Defendant with imprisonment without prison labor or heavier punishment, became final and conclusive, and the judgment on the sentence B, which was committed against the Defendant’s violation of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) was committed between the final and conclusive date of the judgment on the crime A and the final date of the judgment on the crime B, the first instance court erred in the misapprehension of legal principles as to Article 39(1) of the Criminal Act, since the crime of violation of Information and Communications Network Act and the judgment on the violation of the Information and Communications Network Act cannot be adjudicated at the same time at the same time, the first instance court’s decision on the crime of violation of Article 39(1) of the Criminal Act was unlawful, on the other hand, even though the judgment on the first instance court which upheld

[1] Articles 37 and 39(1) of the Criminal Act / [2] Articles 37 and 39(1) of the Criminal Act, Articles 44-7(1)3 and 74(1)3 of the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc.

[1] Supreme Court Decision 2009Do9948 Decided October 27, 2011

Defendant

Defendant

Attorney Kim Jong-chul

Suwon District Court Decision 2012No1725 decided July 5, 2012

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of any statement in the supplemental appellate brief not timely filed).

1. Examining the reasoning of the judgment of the court below in light of the records, it is justified that the court below affirmed the judgment of the court of first instance which found the defendant guilty of violating the Act on Promotion of Information and Communications Network Utilization and Information Protection, Etc. (hereinafter “Information and Communications Network Act”) on the grounds as stated in its holding, and it does not err in the misapprehension of legal principles as to Article 44-7 (1) 3 of the Information and Communications Network Act, as alleged in the grounds of appeal.

2. Furthermore, we examine ex officio.

(a) "A crime for which judgment to face with imprisonment without prison labor or a heavier punishment has become final and a crime committed before such judgment has become final and conclusive" shall constitute concurrent crimes provided for in the latter part of Article 37 of the Criminal Act. In such cases, a punishment shall be imposed in consideration of equity in cases where a crime among concurrent crimes under Article 39 (1) of the Criminal Act and a crime for which judgment has become final and conclusive

Meanwhile, in light of the language, legislative intent, etc. of the latter part of Article 37 and Article 39(1) of the Criminal Act, in cases where a crime for which judgment has not yet become final and conclusive cannot be adjudicated concurrently with the crime for which judgment has already become final and conclusive, it is reasonable to interpret that the sentence shall not be imposed concurrently in consideration of equity and equity, or that the sentence shall not be mitigated or exempted (see Supreme Court Decision 2009Do948, Oct. 27, 201).

B. The record reveals the following facts.

(1) On April 14, 2010, the Defendant was sentenced to a suspended sentence of one year and six months to imprisonment with prison labor for an attempted crime, etc. at the credit branch of the Suwon District Court, and the judgment became final and conclusive on October 14, 2010. ② On June 24, 2011, the Defendant was sentenced to eight months of imprisonment with prison labor for the crime of interference with business, etc. at the same court, and the judgment became final and conclusive on October 7, 2011.

On the other hand, the crime of previous convictions is ① the crime committed before the day when the judgment of the previous conviction becomes final and conclusive ( October 14, 2010).

(2) In regard to the instant crime, the first instance court sentenced the instant crime to a punishment by taking account of the equity between the crime and the crime of a previous offense and the case of a judgment pursuant to the latter part of Article 37 and Article 39(1) of the Criminal Act. The lower court upheld the first instance judgment and dismissed all the prosecutor and the Defendant’s appeal.

C. The above measures by the court below are hard to accept for the following reasons.

With respect to the instant crime, the first instance court sentenced the sentence in consideration of equity in the case where the judgment has become final and conclusive pursuant to Article 39(1) of the Criminal Act, and simultaneously with the instant crime. However, the instant crime is ① a crime committed after the final and conclusive date of the judgment, and ② a crime committed before and after the final and conclusive date of the judgment, and thus, the instant crime and the judgment were committed before the final and conclusive date of the judgment, and thus, the instant crime and the crime committed before and after the final and conclusive date of the judgment could not

Therefore, it is unlawful for the first instance court to render a sentence in consideration of equity in the case where the crime of this case was committed simultaneously with the crime of previous offense pursuant to Article 39(1) of the Criminal Act. Nevertheless, the lower court did not reverse the first instance judgment and maintained it as it is. The lower court erred by misapprehending the legal doctrine on Article 39(1) of the Criminal Act, which affected the conclusion of the judgment

D. In addition, according to the records, the defendant was sentenced to four months of imprisonment with prison labor or two months of imprisonment with prison labor for a violation of the Punishment of Violences, etc. Act (joint coercion) at the branch court of Suwon District Court on November 11, 2011, and the judgment became final and conclusive on April 26, 2012 prior to the pronouncement of the judgment of the court below. The crime of this case and "the part sentenced to two months of imprisonment with prison labor for the crime of this case" (hereinafter referred to as "crime of three-2 criminal records") both ① the day when the judgment of the court below became final and conclusive ( October 14, 2010) and ② the day when the judgment of the previous crime became final and conclusive ( October 7, 2011) (hereinafter referred to as "crime of three-2 criminal records"), and the judgment of the court below was stated in the indictment of this case and the judgment of the court of first instance (3-2 criminal records) before the pronouncement of the judgment of this case and the judgment of the court below became final and conclusive.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ko Young-han (Presiding Justice)