[1] In a case where a sentence is invalidated, whether the previous conviction may be deemed to be “a case where imprisonment is sentenced” under Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (negative)

[2] The meaning of Article 65 of the Criminal Code that "the sentence loses its effect" and in a case where the sentence loses its effect pursuant to the above provision, whether the previous conviction can be deemed as "a case of imprisonment with prison labor" under Article 5-4 (5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (negative)

[3] Where a person was sentenced to imprisonment before the expiration of the term of validity of a sentence of imprisonment for a previous offense, but the term of suspension has expired without invalidation or revocation of the sentence, and the term of validity of a sentence before the suspension of execution has expired, whether imprisonment with labor before the suspension of execution constitutes “a case of imprisonment with labor” under Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (negative)

[1] Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes; Article 7 of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 65 of the Criminal Act; Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes / [3] Article 65 of the Criminal Act; Article 5-4(5) of the Act on the Aggravated Punishment

[1] [2] Supreme Court Decision 2010Do8021 Decided September 9, 2010 (Gong2010Ha, 1963) / [1] Supreme Court Decision 2002Da39 Decided October 22, 2002 (Gong2002Ha, 2918) Supreme Court Decision 2010Do8 Decided March 25, 2010 (Gong2010Sang, 851)

Defendant

Defendant and Prosecutor

Attorney Yoon Young-chul

Seoul Southern District Court Decision 2013No2151, 2014No355 decided May 23, 2014

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

Examining the reasoning of the judgment below in light of the records, the judgment of the court below which rejected the defendant's assertion on the mental disorder on the ground that the defendant was in a state that the defendant had weak ability to distinguish things or make decisions at the time of committing the crime of this case and did not seem to have been in a state of mental disorder. There is no error of law by mistake of facts

2. As to the Prosecutor’s Grounds of Appeal

A. Whether it constitutes a dangerous thing

Examining the reasoning of the judgment below in light of the records, it is just in the judgment of the court below that it does not constitute "hazardous goods" under Article 3 (1) of the Punishment of Violences, etc. Act, since it is difficult to see that the victims suffered harm by social norms due to the act committed by the victims as a Gemangium in the case of this case, and therefore, it does not constitute "hazardous goods" under Article 3 (1) of the Act on the Punishment of Violences, etc., and there

B. Whether Article 5-4(5) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) applies

(1) Article 5-4(5) of the Aggravated Punishment Act provides that “When a person who has been sentenced not less than twice to imprisonment for the crime under Articles 329 through 331, and Articles 333 through 336, 340, and 362 of the Criminal Act, or the attempts thereof, once or more times, again commits such crime, and is punished as a repeated offense by committing such crime, the same shall also apply to the case where the punishment is punished as a repeated offense.” Meanwhile, in a case where the punishment becomes invalidated by the Act on the Lapse, etc. of Punishment, etc., the legal effect by the sentence becomes extinguished in the future, and thus, the criminal offense cannot be deemed to have been sentenced to imprisonment under Article 5-4(5) of the Aggravated Punishment Act after the lapse of the sentence. In light of the legislative intent of the Act on the Lapse, etc. of Punishment, etc., if the period of the last sentence expires without being sentenced to suspension of qualification or more severe punishment, the punishment shall be deemed to have been fully held prior to the last sentence (see, etc.).

In addition, Article 65 of the Criminal Act on the effect of a suspended sentence provides that “the sentence shall lose its effect” means that the legal effect of the sentence upon the invalidation of the sentence, such as the invalidation of the sentence under the Act on the Lapse of the Suspension of Execution, shall be extinguished in the future. As such, if the sentence loses its effect in accordance with the above provision, the previous conviction itself shall not be deemed to be “a case of imprisonment with prison labor” as provided in Article 5-4(5) of the Aggravated Punishment Act (see Supreme Court Decision 2010Do8021, Sept. 9, 2010). Furthermore, even though there was a previous criminal offense before the expiry of the period of imprisonment with prison labor, the suspended sentence shall not be invalidated or revoked, and if the period of imprisonment with prison labor has elapsed prior to the expiration of the period of imprisonment with prison labor, it shall also be deemed that the imprisonment prior to the suspension of execution becomes void and thus, it does not constitute “a case of imprisonment with prison labor” as provided in Article

(2) In the instant case where a public prosecution was instituted by the Defendant on September 28, 2013 by applying Article 5-4(5) of the Aggravated Punishment Act to the charge of larceny at night, the lower court determined as follows: (a) based on evidence, that the Defendant’s imprisonment with prison labor for larceny at the military court of the Army, High School in the Army, etc. on October 5, 1990; (b) 10 months of imprisonment with prison labor for larceny at the Cheongju District Court in the Cheongju District Court in August 8, 191; and (c) 3 years and 6 months of imprisonment with prison labor for special larceny and robbery at Seoul High Court in July 13, 199; and (d) May 22, 2002; (c) 6 months of imprisonment with prison labor for an attempted murder at night; and (d) the Defendant’s imprisonment with prison labor at the Seoul District Court in the Seoul District Court in the Seoul District Court in the Seoul District on November 3, 2005>

(A) According to the legal principles as seen earlier, the Defendant’s previous convictions are deemed to have been fully invalidated at the expiration of five years after the execution of his previous offense was completed. Thus, it cannot be deemed to be “a case of imprisonment” under Article 5-4(5) of the Aggravated Punishment Act.

(B) (4) Although a previous offense was five years before the lapse of the period of the suspension of the execution of a minor imprisonment, (5) the period of the suspension of the execution of the previous offense was not invalidated or revoked, and the period of the suspension of the execution of the previous offense was passed without lapse of five years, and (4) the period of the suspension of the execution of the previous offense was also invalidated, and thus, (5) the period of the suspension of the execution of the previous offense is not considered to be “a case of imprisonment” under Article 5-4(5) of the Aggravated Punishment Act. If the criminal offense is not interpreted, (5) If the criminal defendant was sentenced to imprisonment without prison labor and the imprisonment has become invalidated, the criminal offense also has the effect of the invalidation of the sentence, while the criminal defendant was sentenced to the suspension of the execution of a minor imprisonment with prison labor, and the same effect as

(C) Accordingly, Article 5-4(5) of the Aggravated Punishment Act cannot be applied to the following cases: (a) the Defendant’s previous convictions (3) and (6) the Defendant’s previous convictions (which falls under Article 5-4(5) of the Aggravated Punishment Act).

(3) In light of the relevant legal principles and records, such determination by the court below is just and there is no error in the misapprehension of legal principles as to the application of Article 5-4(5) of the Act, as alleged in the grounds of appeal

3. Conclusion

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

Justices Lee In-bok (Presiding Justice)