[1] In a case where a sentence is imposed on a crime for which judgment has not been rendered among the concurrent crimes under the latter part of Article 37 of the Criminal Act, whether the punishment of “a crime for which judgment to be sentenced by imprisonment without prison labor or heavier punishment has become final” under the latter part of Article 37 of the Criminal Act is also included in “the previous crime for which judgment to be sentenced to suspension of qualification or heavier punishment

[2] The case holding that the judgment of the court below which suspended the sentence against the defendant on the ground that although the defendant had been sentenced to imprisonment without prison labor or heavier punishment after the crime of this case and the judgment became final and conclusive, there was no record of punishment in addition to the fine at the time of the crime of this case, and that equity in the case where the crime of this case and the judgment became final and conclusive

[1] Article 39(1) of the Criminal Act provides that the suspension of sentence mainly aims to promote voluntary improvement and rehabilitation without imposing any punishment on a sentry who is minor, and the Criminal Act provides that the exception to the suspension of sentence is only "the previous criminal who has been sentenced to a suspension of qualification or more severe punishment" and does not exclude the previous criminal conviction by a judgment sentenced to imprisonment without prison labor or more severe punishment under the latter part of Article 37 of the Criminal Act, and Article 39(1) of the Criminal Act provides that if there is a concurrent crime which has not been adjudicated among concurrent crimes, the sentence of imprisonment without prison labor or more punishment shall be imposed for the crime which has become final and conclusive in consideration of equity and cases where the crime which has become final and conclusive is concurrently sentenced to imprisonment without prison labor or more punishment for the crime which has become final and conclusive, the suspension of sentence may not be imposed even if the remaining crime is judged concurrently with the crime for which the judgment becomes final and conclusive. In full view of the foregoing, it is unreasonable to deem the suspension of sentence possible solely on the ground that the judgment becomes final and conclusive one shall be sentenced to imprisonment or more punishment."

[2] The case holding that the judgment of the court below which suspended the sentence of the defendant on the ground that although the defendant was sentenced to imprisonment without prison labor or heavier punishment after the crime of this case and the judgment became final and conclusive, the crime of this case was committed before the above crime of this case and there was a possibility of concurrent judgment with the above final and conclusive judgment, and there was no record of punishment other than the fine at the time of the crime of this case and there was no record of concurrent judgment with the above crime of this case and that equity with the above crime of this case which became final and conclusive should be considered at the

[1] Articles 37, 39(1), and 59(1) of the Criminal Act / [2] Articles 37, 39(1), and 59(1) of the Criminal Act

[1] Supreme Court Decision 92Do1246 delivered on August 14, 1992 (Gong1992, 2714) Supreme Court Decision 2003Do3768 Delivered on December 26, 2003 (Gong2004Sang, 294) Supreme Court Decision 2005Do5756 Delivered on May 11, 2007, Supreme Court Decision 2007Do9405 Delivered on January 18, 2008

Defendant

Prosecutor

Suwon District Court Decision 2009No1386 Decided December 24, 2009

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

We examine the grounds of appeal.

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 in the preceding time are obvious, taking into consideration the facts set forth in Article 51: Provided, That this shall not apply to a person who has been sentenced to suspension of qualifications or more severe punishment.”

However, the suspension of sentence is a system that mainly aims to promote voluntary improvement and rehabilitation without imposing a punishment on a sentry who is minor (see, e.g., Supreme Court Decisions 2003Do3768, Dec. 26, 2003; 2007Do9405, Jan. 18, 2008). The Criminal Act only provides that the exception to the suspension of sentence is “a person who has been sentenced to a suspension of qualification or a heavier punishment” and does not include a previous offense prior to the crime, or a person who has not been sentenced to imprisonment without prison labor or a heavier punishment under the latter part of Article 37 of the Criminal Act; Article 39(1) of the Criminal Act does not exclude a previous offense by a judgment resulting in concurrent crimes; Article 39(1) of the Criminal Act provides that if a person has been sentenced to a punishment heavier than imprisonment without prison labor for the crime for which judgment became final and conclusive, if the remaining crime has become final and conclusive, it can not be deemed that the sentence of suspended sentence becomes more than 37(1) of the Criminal Act.

According to the judgment of the court below, the defendant was sentenced to a suspended sentence of 4 months of imprisonment with prison labor for the crime of violation of the Punishment of Violences, etc. Act at Suwon District Court on November 11, 2008 and was sentenced to a suspended sentence of 2 years on the 19th of the same month. Thus, in light of the above legal principles, even though the criminal facts of this case against the defendant were committed before the above previous conviction and there is a possibility of concurrent judgment with the above final judgment, the sentence cannot be suspended against the defendant.

Nevertheless, the court below has suspended the sentence against the defendant on the ground that the defendant did not have any record of punishment as well as punishment at the time of the crime of this case, and that equity should be taken into account in the case where the crime of this case and the crime for which judgment has become final and conclusive at the same time. Such judgment of the court below is erroneous in the misunderstanding of legal principles as to the proviso of Article 59 (1) of the Criminal Act,

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ran (Presiding Justice)