Whether a suspended sentence may be imposed on a person who has been sentenced to a suspended sentence and for whom the grace period has elapsed without delay (negative)

Articles 59(1), 61, and 65 of the Criminal Act

Supreme Court Decision 2003Do3768 Delivered on December 26, 2003 (Gong2004Sang, 294) Supreme Court Decision 2005Do5756 Delivered on May 11, 2007

Defendant

Prosecutor

Busan District Court Decision 2007No2572 Decided October 16, 2007

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

After finding the Defendant guilty of committing the instant crime, the lower court reversed the judgment of the first instance, which sentenced the Defendant to a fine in consideration of all the circumstances, and sentenced the Defendant to a suspended sentence.

Upon examining the record, the defendant was sentenced to a suspended sentence of two years and six months for a violation of the Punishment of Violences, etc. Act at the Daegu District Court on May 4, 1971, and was sentenced to a suspended sentence of three years and six months for a violation of the Punishment of Violences, etc. Act, and on December 7, 1978, the defendant was sentenced to a suspended sentence of two years for a crime of assault at the Busan District Court on December

Article 59(1) of the Criminal Act provides that "in the event a sentence of imprisonment or imprisonment without prison labor for not more than one year, suspension of qualifications or a fine is imposed, the sentence may be suspended if the circumstances of the previous sentence are remarkable, taking into consideration the matters specified in Article 51: Provided, That this shall not apply to a person who has been sentenced to suspension of qualifications or more severe punishment: Provided, That this shall not apply to a person who has been sentenced to suspension of qualifications or more severe punishment." In full view of the following: (a) the suspension of sentence mainly aims to facilitate voluntary improvement and rehabilitation without imposing the punishment on the first offender who is minor; (b) Article 61 of the Criminal Act provides that a judgment of suspension of qualifications or more severe punishment becomes final during the suspension of qualifications or a prior conviction resulting in suspension of qualifications or more severe punishment," and Article 59(1) proviso of the Criminal Act provides that "a person who has been sentenced to suspension of qualifications or more severe punishment shall not be deemed to have lost the effect of the suspension of sentence after the lapse of 20 years or more severe punishment (see Article 650 of the Criminal Act).

Therefore, although the judgment of the court below is impossible to render a judgment of the suspended sentence against the defendant, it is erroneous in the misapprehension and application of the proviso of Article 59 (1) of the Criminal Act, which affected the conclusion of the judgment. The prosecutor's appeal pointing this out is justified.

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)