[1] In a case where a sentence becomes invalidated, whether it can be deemed that the previous crime is "a case of imprisonment with prison labor" under Article 5-4 (5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (negative)

[2] The time of calculation of the period of invalidation of punishment for imprisonment with labor sentenced two or more times and the scope of invalidation

[3] Meaning of Article 65 of the Criminal Code that "a sentence shall lose its validity", and in a case where a sentence loses its validity, whether it can be viewed as "a case of imprisonment with prison labor" under Article 5-4 (5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (negative)

[1] In a case where a punishment becomes invalidated pursuant to Article 7(1) of the former Act on the Lapse of Punishment, etc. of Specific Crimes (amended by Act No. 10211, Mar. 31, 2010), the legal effect by the sentence of a punishment ceases to exist in the future. Thus, the previous conviction cannot be deemed to be “a case of imprisonment with prison labor” under Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010).

[2] In light of the legislative intent of the former Act on the Lapse of Punishment, etc. (amended by Act No. 10211, Mar. 31, 2010), if the period prescribed in the said Act has elapsed since the date when a person who was sentenced to more than two imprisonment had completed the last sentence without being sentenced to suspension of qualification or more severe punishment, the punishment shall be deemed to be fully invalidated prior to the last sentence.

[3] Article 65 of the Criminal Act on the Effect of Suspension of Execution provides that "the sentence shall lose its validity" means that the legal effect of the sentence upon the sentence shall be extinguished in the future, such as the invalidation of the sentence under the former Act on the Lapse of the Punishment, etc. of Specific Crimes (amended by Act No. 10211, Mar. 31, 2010). Therefore, even in cases where the sentence loses its effect pursuant to the above provision, the previous conviction cannot be deemed to be "a case of imprisonment with prison labor" under Article 5-4 (5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010).

[1] Article 7(1) of the former Act on the Lapse of Punishment, etc. of Specific Crimes (Amended by Act No. 10211, Mar. 31, 2010); Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010) / [2] Article 7(1) of the former Act on the Lapse of Punishment, etc. of Specific Crimes / [3] Article 65 of the Criminal Act; Article 7(1) of the former Act on the Lapse of Punishment, etc. of Specific Crimes (Amended by Act No. 10211, Mar. 31, 2010); Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (Amended by Act No. 10210, Mar. 31, 2010)

[1] [2] Supreme Court Decision 83Do1840 and 8339 Decided September 13, 1983 (Gong1983, 1549), Supreme Court Decision 2009Do14793 Decided March 25, 2010, Supreme Court Decision 2010Do8 (Gong2010Sang, 851) Decided March 25, 2010 / [1] Supreme Court Decision 2002Do39 Decided October 22, 2002 (Gong2002Ha, 2918) / [3] Supreme Court Decision 83Mo8 Decided April 2, 1983 (Gong1983, 841), Supreme Court Decision 205Do5756 Decided May 11, 2007

Defendant

Defendant

Attorney Han Han-chul

Daejeon District Court Decision 2010No933 Decided June 10, 2010

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

1. We examine the grounds of appeal.

Examining the reasoning of the judgment of the court below and the judgment of the court of first instance maintained by the court below in light of the records, the court below's determination that the charges of this case against the defendant are recognized based on its stated reasoning is acceptable as it is in accordance with the reasonable free evaluation of evidence by the judge of the fact-finding court, and there is no violation of law of violation of logical and empirical rules

2. It shall be deemed ex officio.

A. Article 7(1) of the Act on the Lapse of Punishment, Etc. (amended by Act No. 10211, Mar. 31, 2010; hereinafter “Punishment Invalidation Act”) provides that “When the period prescribed in each subparagraph of the same paragraph expires from the date the execution of a sentence is completed or exempted without being sentenced to suspension of qualification or any heavier punishment, the sentence shall be invalidated.” In the case of imprisonment with or without prison labor for not more than three years under Article 7(1)2 through 3 years, the said period shall be five years. In a case where the sentence becomes invalidated pursuant to the above provision, the legal effect of the sentence becomes extinguished by the sentence becomes extinct in the future, and such criminal record cannot be deemed as “where a person has been sentenced to imprisonment” under Article 5-4(5) of the former Act on the Aggravated Punishment, etc. of Specific Crimes (amended by Act No. 10210, Mar. 31, 2010; hereinafter “Special Punishment Act”) and the period of suspension of qualification or more punishment shall not be deemed to be more than 20 years.

In addition, Article 65 of the Criminal Act provides that "the sentence of a punishment shall lose its effect when the grace period has elapsed without the invalidation or cancellation of the sentence after the suspension of execution of sentence was sentenced," and the meaning of "the sentence loses its effect" here is that the legal effect by the sentence shall expire in the future, such as the invalidation of the sentence under the Invalidation of Punishment Act (see Supreme Court Order 83Mo8, Apr. 2, 1983). Therefore, even if the sentence loses its effect pursuant to the above provision, the previous conviction cannot be viewed as "a case of imprisonment with prison labor" as provided by Article 5-4 (5) of the Aggravated Punishment Act.

B. The court of first instance, as cited by the court below, acknowledged the following facts: (a) the defendant was sentenced to two years of imprisonment on September 10, 1981 for the following reasons: (b) 10 months of imprisonment with prison labor on July 9, 1984 for larceny; (c) 1 year of imprisonment with prison labor on July 10, 1986 for larceny; (d) 2 years of imprisonment with prison labor on June 7, 197 for larceny; and (e) 2 years of imprisonment with prison labor on April 27, 2001 for a violation of the Special Family Act (Larceny); (b) 2 years of imprisonment with prison labor on July 19, 2006 for a violation of the Special Family Act (Larceny); and (c) 3 years of imprisonment with prison labor on February 11, 2010 for the crime of larceny; and (d) 3 years of imprisonment with prison labor on February 4, 2015; and

C. However, the above judgment of the court below is not acceptable.

In other words, if there is no fact that the defendant was sentenced to the suspension of qualifications or more severe punishment until a period of five years elapses from the time when the execution of the punishment for the previous offense was completed, the sentence shall not be deemed to have been invalidated under Article 7 (1) 2 of the Aggravated Punishment Act. In addition, if the period of the suspension of punishment expires after the lapse of the period of the suspension of punishment without the invalidation or cancellation of the suspension of punishment, the previous offense also cannot be included in the case of imprisonment under Article 5-4 (5) of the Aggravated Punishment Act in light of the above legal principles: (i) if the previous offense is excluded from the case of imprisonment under Article 5-4 (5) of the Aggravated Punishment Act; (ii) if the previous offense of the defendant is the case of imprisonment under Article 5-4 (5) of the Aggravated Punishment Act; (iii) if the former offense of the defendant satisfies the requirements that the latter should be remaining, and (vi) if so, the latter offense must be more than three times, it cannot be applied under Article 5-4 (5) of the Aggravated Punishment Act.

Therefore, the court below should have judged the application of Article 5-4 (5) of the Act on Special Cases after examining whether the above three previous crimes were sentenced to the suspension of qualifications or heavier punishment until the period of five years elapses from the time the above three previous crimes were sentenced to the suspension of qualifications or more punishment, and whether the above previous crimes were sentenced to the suspension of punishment without the invalidation or cancellation of the suspension of punishment.

Therefore, applying Article 5-4 (5) of the Aggravated Punishment Act to the facts charged in this case is not sufficient to deliberate whether the above (1) through (4) criminal records constitute “a case of imprisonment” under Article 5-4 (5) of the Aggravated Punishment Act, or there is an error in the misapprehension of legal principles as to “a case of imprisonment with prison labor” under Article 5-4 (5) of the Aggravated Punishment Act, which affected the conclusion of the judgment.

3. Conclusion

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 Ji-hyung (Presiding Justice)