The meaning and scope of “a sentence imposed on a crime committed during a period of three years from the time the sentence of imprisonment without prison labor or any heavier punishment was finalized or exempted” under the proviso of Article 62(1) of the Criminal Act as grounds for disqualification in the suspension of execution.

Article 62(1) of the Criminal Act

[Plaintiff-Appellant] Plaintiff 2006Do6196 decided Feb. 8, 2007 (Gong2007Sang, 461)

Defendant

Defendant

Attorney Kim Chang-chul

Ulsan District Court Decision 2018No515 decided October 12, 2018

The appeal is dismissed.

The grounds of appeal are examined.

The proviso of Article 62(1) of the Criminal Act provides, “Where a sentence is imposed on a crime committed during a period of three years from the time a sentence of imprisonment without prison labor or heavier punishment was finalized or exempted” as grounds for disqualification. This also includes cases where a sentence is imposed on a crime committed at the time three years have not passed since the completion of execution or exemption from execution of a sentence as declared by a court, and where a sentence is imposed on a crime committed during the period of suspension of execution, and where a sentence is imposed on a crime committed during the period of suspension of execution and where a suspended sentence is already invalidated or revoked and where a sentence remains without the lapse of the period of suspension of execution (see Supreme Court Decision 2006Do6196, Feb. 8, 2007, etc.).

According to the records, on November 28, 2016, the Defendant was sentenced to a suspended sentence of two years at the Ulsan District Court on one-year imprisonment for a crime of violation of the Road Traffic Act, and the judgment became final and conclusive on April 1, 2017. The Defendant committed each of the instant crimes during the suspended sentence period under the above judgment. The lower court upheld the first instance judgment that sentenced the Defendant to a prison term of six months. In so determining, the lower court did not err by misapprehending the legal doctrine on the grounds for disqualification of the suspended sentence under the proviso of Article 62(1) of the Criminal Act, contrary to what is alleged

According to Article 383 Subparag. 4 of the Criminal Procedure Act, only a case where death penalty, life imprisonment, or imprisonment or imprisonment without prison labor for not less than ten years has been imposed, may be appealed on the ground of unfair sentencing. Therefore, in this case where a more minor sentence has been imposed on the Defendant, the argument that the sentence is too unreasonable is not a legitimate ground for appeal. The argument that delayed the date of sentencing does not constitute a legitimate ground for appeal under Article 38

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

Justices Lee Dong-won (Presiding Justice)