Whether the suspended sentence of Article 62 (1) of the Criminal Act, which is the cause of revocation of the suspended sentence, also includes the case of being sentenced to suspended sentence.

Among the reasons for the cancellation of the suspended sentence under Article 62(1) of the Criminal Act, it includes the case where a person who has been sentenced to suspended sentence committed a concurrent crime under Article 37 of the Criminal Act and was sentenced to suspended sentence at the same time in the same procedure, unless it is deemed that if he/she had received the judgment at the same time, he/she would have received the suspended sentence.

Articles 37, 62(1), and 64 of the Criminal Act

Supreme Court en banc Decision 87Do2365 Decided September 12, 1989 (Gong1989, 1422) 88Do824 Decided October 10, 1989 (Gong190, 1708)

Re-appellant

Msan District Court Order 89Ro5 dated June 30, 1989

The reappeal is dismissed.

As to the grounds of reappeal.

The revocation of a suspended sentence can only be made when the grounds for the proviso of Article 62 of the Criminal Act are discovered only after the judgment of the suspended sentence becomes final and conclusive, and if it is already discovered before the judgment becomes final and conclusive, it cannot be sentenced to the suspended sentence (see, e.g., Supreme Court Order 83Mo58, Jan. 18, 1984). Among the grounds for the proviso of Article 62 of the Criminal Act, it includes the case where a special case (i.e., where a person who received an appeal for a suspended sentence commits a concurrent crime under Article 37 of the Criminal Act and is deemed to have been sentenced to the suspended sentence at the same time if he/she received a judgment at the same time in the same procedure) is included in the case where the suspended sentence is not imposed (see, e.g., Supreme Court Decision 87Do2365, Sep. 12, 1989). As confirmed by the court below, the dismissal of the immediate appeal by the re-appellant is justified.

It is without merit that the reappeal is dismissed, and it is so decided as per Disposition by the assent of all participating judges.

Justices Kim Yong-ju (Presiding Justice)