In a case where a crime not yet adjudicated among latter concurrent crimes of Article 37 of the Criminal Act could not be judged concurrently with a crime for which judgment became final and conclusive, whether a sentence may be imposed, or a sentence may be mitigated or exempted in consideration of equity and equity, in accordance with Article 39(1) of the Criminal Act (negative)

Articles 37 and 39(1) of the Criminal Act

Supreme Court Decision 2009Do9948 Decided October 27, 2011 (Gong2012Ha, 1799) Supreme Court Decision 2012Do9295 Decided September 27, 2012 (Gong2012Ha, 179) Supreme Court Decision 2013Do1203 Decided May 16, 2014

Defendant

Defendant

Law Firm LLC (Law Firm LLC, Attorneys Kim Ma-ok

Incheon District Court Decision 2017No3237, 4084 Decided January 12, 2018

The appeal is dismissed.

The grounds of appeal are examined.

In light of the language, legislative intent, etc. of the latter part of Articles 37 and 39(1) of the Criminal Act, where a crime for which judgment has not yet become final and conclusive cannot be adjudicated concurrently with a 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 equity and equity (see, e.g., Supreme Court Decision 2009Do948, Oct. 27, 2011).

According to the reasoning of the lower judgment and the record, the following facts are revealed. The Defendant was sentenced to one year of imprisonment for fraud, etc. at the Suwon District Court on September 8, 2016, and two years of suspended execution, and the judgment became final and conclusive on September 20, 2016 (hereinafter “former conviction”). On March 16, 2017, the Defendant was sentenced to four months of imprisonment for fraud in the Incheon District Court’s Vice Branch Branch Branch of the Incheon District Court, and the judgment became final and conclusive on August 11, 2017 (hereinafter “second criminal conviction”). The crime of the second criminal offense was committed in the first criminal offense committed before the judgment becomes final and conclusive, and was sentenced to punishment by applying the latter part of Article 37 and Article 39(1) of the Criminal Act, on the ground that equity ought to be considered in cases where the Defendant is simultaneously tried with the crime of the first criminal offense before the judgment becomes final and conclusive.

However, according to the records, the crime of this case, which the court below found guilty, was committed after the judgment of the court of first instance became final and conclusive, and since the crime of the second criminal offense committed before the judgment of the court of first instance cannot be judged at the same time from the beginning, it constitutes the crime of the second criminal offense which was committed before the judgment of the court of first instance becomes final and conclusive, it shall be deemed that the sentence cannot be imposed, or the sentence cannot be mitigated or remitted in consideration of equity with the crime of

Therefore, the lower court’s determination of the sentence against the Defendant without considering the crime of the second criminal record against the instant crime is justifiable. In so doing, it did not err by misapprehending the legal doctrine on the application of the latter part of Article 37 and Article 39(1) of the Criminal Act.

The Defendant’s appeal is without merit and thus dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Chang-suk (Presiding Justice)