[1] The elements of evaluation in examining whether the revocation of the suspended sentence under Article 64(2) of the Criminal Code is a requirement for revocation of the suspended sentence

[2] The case holding that the court below's dismissal of the defendant's claim for the cancellation of the suspended sentence is erroneous in the misapprehension of legal principles and incomplete hearing in case where the defendant with the same record was ordered to be put on probation along with the suspended sentence due to drinking driving, etc. and did not comply with the direction and supervision of probation

[1] When the court examines, upon the request of a prosecutor under the Act on Probation, etc., whether the requirements for revocation of a suspended sentence under Article 64 (2) of the Criminal Act are satisfied, it shall separately evaluate whether probation officers violate the rules of probation, and the degree of such violations, from the punishment for recidivism during the period of probation, and since probation, community service, or attending order are concurrently imposed, whether probation service or attending order violates the rules of probation, or whether probation officers violate the rules of probation, or the degree of such evaluation.

[2] The case holding that the order of the court below which dismissed the defendant's claim for the revocation of the suspension of execution on several occasions, in case where the defendant, who had been punished for drinking and driving without a license, failed to comply with the direction and supervision of the probation officer and received a request for the revocation of the suspension of execution due to the same crime and failed to comply with the direction and supervision of the probation officer and failed to comply with the request for the revocation of the suspension of execution, but failed to comply with the guidance and supervision of the probation officer as before and after the dismissal of the request for the revocation of the suspension of execution,

[1] Article 64 (2) of the Criminal Code, Article 47 of the Act on Probation, etc. / [2] Article 64 (2) of the Criminal Code, Article 47 of the Act on Probation, etc.

Defendant

Prosecutor

Daegu District Court Order 2010Ro23 dated March 8, 2010

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

The grounds of reappeal are examined.

When the court examines, upon the request of a prosecutor under the Act on Probation, etc., whether the requirements for revocation of the suspension of execution under Article 64 (2) of the Criminal Act are satisfied, it shall evaluate whether probation officers violate the rules of probation, and the degree of such violations, separate from those subject to separate punishment for recidivism during the period of probation, and since probation, community service, or order to attend education are concurrently imposed, whether probation service or order to attend education is fulfilled or not cannot be a critical factor for evaluation of whether probation officers violate the rules

According to the reasoning of the order of the court below and the records, the defendant had been punished several times for driving without a license and drinking. On October 21, 2008, the Daegu District Court issued 20 years of probation, probation order for 40 hours of probation, and community service order for 80 hours of compliance driving, and the above judgment became final and conclusive on January 19, 2009, 10 days after the above judgment became final and conclusive. The defendant refused to comply with the direction and supervision of probation officers and the execution order more than 10 days after the above judgment became final and conclusive. The probation officers issued a warning that "after continuing to violate the code of practice, they would be subject to disadvantageous disposition, such as arrest, detention, revocation of disposition, etc.," and the probation officers issued a false warning to the above probation officers on July 29, 2009, who did not comply with the above orders of probation officers and the probation officers' request for the cancellation of indictment on July 20, 2009."

In light of the above legal principles, although the defendant had the record of being punished for drinking and driving without a license, and was ordered to be put on probation along with the sentence of probation due to the same crime, the probation officer's instruction and supervision was refused to comply with the probation officer's request for the revocation of suspended sentence, and the defendant did not comply with the direction and supervision as before the probation officer's request for the revocation of suspended sentence was dismissed and operated without the same kind of license. Thus, the defendant fulfilled the community service order and the order to attend lecture and violated the matters to be observed as a person subject to probation seriously, separate from being subject to punishment corresponding thereto through the relevant trial. Nevertheless, the court below reversed the first instance court that revoked the above suspended sentence against the defendant, and dismissed the request for the revocation of the suspended sentence of this case for the revocation of the suspended sentence on the grounds as stated in its reasoning, it erred by misapprehending the legal principles on the requirements for the revocation of suspended sentence

Therefore, the order 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 Shin Young-chul (Presiding Justice)