Defendant

Defendant

A citizen in charge of navigation (prosecution) or a soldier's room (public trial)

Attorney Kim Hyun-woo

Daejeon District Court Decision 2017Gohap3 Decided March 8, 2017

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment for six months.

A penalty of one million won shall be additionally collected from a defendant.

The amount equivalent to the above additional collection charge shall be ordered to be paid provisionally.

Article 55(1) of the Criminal Act applies to mitigation of punishment in accordance with the latter part of Article 39(1) of the Criminal Act, where a crime committed prior to the final and conclusive judgment of imprisonment without prison labor or heavier punishment (excluding death penalty, life imprisonment, or imprisonment without prison labor for life) is a crime for which the lower limit of statutory punishment is set. It accords with the Constitution that Article 55(1) of the Criminal Act applies to mitigation of punishment pursuant to the latter part of Article 39(1) of the Criminal Act.

1. Summary of grounds for appeal;

The crime of this case is limited to selling or attempted psychotropic drugs, which are crimes of the same kind as the crime for which judgment has become final and conclusive, and since the accused has already been led to confession in the investigation process of the crime for which judgment has become final and conclusive, the crime of this case was tried separately and tried. Therefore, the punishment for the crime of this case should have been sentenced equally to the case where the crime of this case was tried like the crime for which judgment has become final and conclusive, compared with the case where the crime of this case was tried. However, the court below sentenced the higher punishment of 1 year and 6 months of imprisonment by deeming that there is a limit to statutory mitigation in determining the punishment against the accused. Such a sentence of the court below

2. Constitutional judgment and interpretation on the latter part of Article 39(1) of the Criminal Act

(a) Related Acts;

Article 58(1)3 of the Narcotics Control Act is applicable to the crime of selling and attempted sales of psychotropic drugs, and the statutory penalty is at least five years. The Defendant has been sentenced to imprisonment with prison labor for life or for not less than five years at the court on December 9, 2016, which was prior to the instant crime. The judgment became final and conclusive on February 10, 2017. Accordingly, the instant crime for which judgment became final and conclusive and the instant crime are concurrent crimes under the latter part of Article 37 of the Criminal Act, and the punishment should be determined in accordance with Article 39(1) of the Criminal Act. The relevant provisions are as follows.

(2) When concurrent crimes are adjudicated at the same time, several crimes which have not become final and conclusive under Article 37 of the Act, or crimes which have been committed before the final judgment has become final and conclusive, as stated in the main sentence, the punishment shall be imposed according to the following classification. 2. When the punishments specified for each crime are of the same kind, other than death penalty, imprisonment for life or imprisonment without prison labor for life, the maximum term or maximum amount for the most severe crime shall be increased by up to one half thereof, but shall not exceed the total of the maximum term or maximum amount of the punishments specified for each crime, although confiscation and confiscation may be concurrently imposed: Provided, That when there is a crime which has not been adjudicated among concurrent crimes under Article 39 (Concurrent Crimes without Judgment, several concurrent Crimes, Execution of Punishment and Concurrent Crimes) (1) The punishment may be mitigated by imprisonment without prison labor for a maximum term of not less than 2 years or for not more than 5 years, the punishment may be mitigated by imprisonment without prison labor for such term;

B. The method of interpreting Article 39(1) of the Criminal Act

In Article 39(1) of the Korean Criminal Act, there is no explicit provision regarding the method of mitigation of punishment for concurrent crimes under the latter part of Article 37 of the Criminal Act, even though Article 39(1) provides that “the punishment may be mitigated or remitted.” In this regard, as in other mitigations prescribed by the Criminal Act at the time of mitigation, there are different opinions on the application of Article 55(1) of the Criminal Act (hereinafter “applicable theory”) and on the non-applicable theory (hereinafter “non-applicable theory”).

The applicable theory that Article 55 of the Criminal Act shall apply when mitigation is made pursuant to the latter part of Article 39(1) of the Criminal Act is the reason for mitigation prescribed by law. The provision of the latter part of Article 39(1) of the Criminal Act is also the reason for excessive self-defense (Article 21(2) of the Criminal Act), excessive escape (Article 22(3) of the Criminal Act), excessive self-defense (Article 23(2) of the Criminal Act), suspension (Article 26 of the Criminal Act), impossible crimes (Article 27 of the Criminal Act), voluntary self-defense (Article 27 of the Criminal Act), and voluntary self-defense (Article 52(1) of the Criminal Act) or “the reduction or exemption of the punishment” in the latter part of Article 39(1) of the Criminal Act is not significantly different from the form that “the punishment may be mitigated or exempted” or “the punishment may be mitigated or exempted”. Thus, the interpretation of the provision of Article 55(1) of the Criminal Act can only be interpreted that the sentencing of the judge’s ex post facto mitigation of the punishment should be applied.

On the contrary, the interpretation that Article 55 of the Criminal Act shall not apply to mitigation of punishment pursuant to the latter part of Article 39(1) of the Criminal Act, i.e., the provision that mitigation of punishment shall not be limited, and that Article 39(1) of the Criminal Act provides for mitigation of punishment and does not explicitly stipulate methods of mitigation of punishment, and that it is based on the unconstitutionality of the applicable theory as seen later.

In the past, the majority opinion takes the position of the application theory, and the trial practice is also followed.

C. Constitutional interpretation on Article 39(1) of the Criminal Act

1) Since the Constitution is the highest norm binding on all state agencies of legislative, administrative, and private law, the court should interpret the law in harmony with the highest norm in interpreting the law. Article 103 of the Constitution also declares that a judge is the Constitution by allowing a judge to judge according to one’s conscience in accordance with the Constitution and laws, thereby declaring that a judge is the first norm to be followed in rendering a judgment. Therefore, if a number of interpretations are possible with respect to a certain legal provision, a judge should first choose an interpretation that is consistent with the Constitution to the extent possible in light of the language and purpose of the relevant legal provision, i.e., constitutional interpretation (see, e., Supreme Court Decisions 2004Du10289, Feb. 12, 2009; 89Hun-Ma38, Jul. 21, 1989).

Meanwhile, since legislators cannot exercise the unlimited legislative formation right as to which crime is committed and to which punishment is imposed, in comparison with the nature of a crime and a punishment for a crime with similar legal interests, where it is evident that the legitimacy and balance between punishment system is lost, not only the basic principles of the Constitution guaranteeing human dignity and value, but also the principle of equality (see, e.g., Constitutional Court Order 2008HunBa9, 43, Feb. 26, 2009). Here, the principle of balance and equality of punishment system means that crimes with similar legal interests should be punished within a reasonable scope (see, e.g., Constitutional Court Order 2006HunBa7, Jun. 29, 2006; Constitutional Court Order 2015HunBa25, Dec. 29, 2016). Such principle of the Constitution and the basic principles of equality should be deemed to be unconstitutional in cases where all citizens are subject to punishment, as well as the basic principles of the Constitution and the principle of equality.

However, according to whether there is a final judgment of punishment of imprisonment without prison labor or more (excluding the case of death penalty, life imprisonment, or imprisonment without prison labor for life) or whether it is judged at the same time or not, the former part of Article 37 of the Criminal Act (hereinafter “dynamic concurrent crimes”) and the latter concurrent crimes (hereinafter “post concurrent crimes”) are classified into two concurrent crimes, and the latter two concurrent crimes are different provisions.

Article 38 of the Criminal Act provides for the punishment where a judgment should be rendered concurrently for concurrent concurrent crimes, namely, several crimes for which judgment has not become final and conclusive. According to the provision, where a punishment for the most severe crime is death penalty, life imprisonment, or imprisonment without prison labor for life, the punishment for the most severe crime shall be imposed, and where the punishment for each crime is for a different crime other than life imprisonment or imprisonment without prison labor for life, the punishment shall be concurrently imposed ( concurrently imposed), and where the punishment for each crime is for a similar crime other than death penalty or imprisonment without prison labor for life or imprisonment for life, the maximum term or maximum amount of the punishment for the most severe crime within the scope of the total term or maximum amount of the punishment for each crime plus the maximum term or maximum amount of the punishment for each crime (limited aggravated aggravated punishment) shall be aggravated by up to one half thereof (limited aggravated punishment). Accordingly, each crime against which a judgment is rendered for concurrent concurrent concurrent concurrent crimes to which limited aggravated aggravated punishment is determined as one of the punishment for punishment, and the punishment evaluated as having been made for each crime becomes more serious different from the statutory punishment for each crime.

On the other hand, Article 39(1) of the Criminal Act is not applicable to ex post concurrent crimes, i.e., crimes committed before a judgment becomes final and conclusive, and which have not yet been adjudicated. According to this, with respect to ex post concurrent crimes, the punishment shall be imposed in consideration of equity in cases where the relevant crime and the judgment become final and conclusive at the same time, and the court may choose ways to reduce or exempt the punishment. As in this case, as provided in Article 38(1)2 of the Criminal Act, where the punishment prescribed for the crimes committed before the final and conclusive judgment sentenced to imprisonment without prison labor or heavier punishment (excluding death penalty, life imprisonment, or imprisonment without prison labor) is “the same type of punishment other than imprisonment without prison labor or imprisonment without prison labor for life” as provided in Article 38(1)2 of the Criminal Act (hereinafter referred to as “2.C.) is to ensure equity in the time of concurrent concurrent crimes subject to mitigation or exemption of the punishment by selecting the relevant punishment by methods of the reduction or exemption of the punishment in accordance with the latter part of Article 39(1) of the Criminal Act.

If the scope of mitigation is limited, it cannot be avoided that many cases occur when the Defendants are concurrently punished as concurrent crimes under the former part of Article 37 of the Criminal Act, “in the case of the Defendants who committed a short-term or lowest punishment,” or when other punishment is to be imposed. For instance, in a case where ex post concurrent crimes are established for the short-term or lowest punishment, appropriate sentencing for a crime constituting ex post concurrent crimes is not to be exempted when considering equity and where the mitigated statutory punishment does not exceed the minimum limit, but to be less than the minimum sentence mitigated (where other grounds for mitigation, such as mitigation, etc. exist, the court is to have the minimum sentence mitigated), and thus, to have the Defendants exempted from punishment more than one half of the mitigated statutory punishment, it is difficult for the appellate court to further punish or exempt from punishment for more than six years (where the Defendants are subject to ex post facto concurrent punishment for an injury or injury at the same time, it is more likely that one of the punishment will be mitigated by imprisonment with prison labor for more than six years (where ex post facto concurrent crimes).

As can be seen, in a case where applying Article 55(1) of the Criminal Act to mitigation of punishment for ex post concurrent crimes is to be applied, the scope and degree of punishment should vary between the cases where concurrent concurrent crimes are punished as prescribed by the statutory minimum statutory punishment, and as can be seen in the foregoing case, it cannot be said that such discrimination is limited to the defendant who is under restraint or should pay a fine. There is no circumstance to deem that such discrimination is consistent with equity in the criminal system or is inevitable. Moreover, it is difficult to find reasonable grounds to justify such discrimination. This is because it is not determined by the defendant’s choice, but rather because it is general to unilaterally determine the punishment according to the prosecutor’s choice when and at the same time, depending on when and when the prosecutor instituted prosecution. Accordingly, such discrimination is unreasonable or inevitable, contrary to the fundamental principle of human dignity and equality, which guarantees the principle of no ex post facto concurrent crimes, and thus, it is unreasonable for a judge to freely choose the punishment of ex post facto concurrent crimes within the scope of punishment for which punishment is imposed.

Therefore, it is difficult to see that taking the application theory in cases where ex post concurrent crimes are crimes with the minimum statutory penalty is a violation of the Constitution, and rather, the non-application theory that does not appear unconstitutionality is consistent with the Constitution.

2) In regard to this, if the Criminal Code provides more unfavorable provisions than the case where the concurrent concurrent crimes are tried against the ex post concurrent crimes, the court may criticize that the relevant provisions should be requested to declare the unconstitutionality of the Constitutional Court by making a request for adjudication on the constitutionality of the relevant provisions, and that it shall not be interpreted in accordance with the theory of non-application without any relevant provisions.

However, when multiple interpretations of a certain legal provision are possible, in principle, an interpretation consistent with the Constitution shall not be determined as unconstitutional to the extent possible in light of the language and purpose of the provision (see, e.g., Constitutional Court en banc Decision 88Hun-Ga5, Jul. 14, 1989; Constitutional Court en banc Decision 89Hun-Ma38, Jul. 21, 1989). The authority to interpret and apply statutes that include the constitutional interpretation of such statutes shall belong exclusively to the court in which the Supreme Court is the highest court (see, e.g., Supreme Court Decisions 2006Da66272, Oct. 23, 2008; 2014Du43707, Feb. 18, 2016; 2014Du43707, Feb. 9, 2016). Meanwhile, in light of the separation of powers structure between the court and the Constitutional Court and the principle of judicial proceedings; the structure and limit of the Constitutional Court Act, the subject and its constitutionality decision of 194.

However, there is no express provision that Article 55(1) of the Criminal Act, which provides for punishment for ex post concurrent crimes, applies to mitigation of punishment for ex post concurrent crimes in the latter part of Article 39(1) of the Criminal Act or Article 55(1) which provides for mitigation of punishment for ex post facto concurrent crimes. Therefore, whether mitigation of punishment for ex post concurrent crimes applies to Article 55(1) of the Criminal Act depends on the interpretation of the Act on whether mitigation of punishment for ex post concurrent crimes constitutes “legal mitigation” as provided by Article 55(1) of the Criminal Act. Such interpretation authority depends on the interpretation of the Act on the issue of whether mitigation of punishment for ex post concurrent crimes constitutes “legal mitigation” as provided by Article 55(

On the other hand, the latter part of Article 39(1) of the Criminal Act declares the mitigation itself as unconstitutional on the ground that the unconstitutionality prior to the penal provision on ex post concurrent crimes is unconstitutional (the defendant makes a request for adjudication on the unconstitutionality of law to this effect). The Defendants are bound to be sentenced or exempted from the punishment prescribed by law until a new legislation is made, and thus, becomes more serious and more seriously infringed on the fundamental rights of the people. In addition, even if the above provision is decided to be inconsistent with the Constitution that the Constitutional Court requires the National Assembly to revise within a certain period on the grounds that it is not consistent with the Constitution, the above provision is applied as unconstitutional until the amendment is made, and the above provision is unconstitutional and unreasonable. Accordingly, the method of resolution is neither beneficial nor desirable to the people.

D. Interpretation of this harmonious law in light of the nature of ex post concurrent crimes and the text and text of the Criminal Code

In light of the nature of ex post concurrent crimes and the text of Article 39(1) of the Criminal Act, the theory of non-application is not constitutional.

The former part of Article 37 of the Korean Criminal Act provides, “ Several crimes for which judgment has not become final and conclusive” and in the latter part of Article 37, “the crimes for which judgment has become final and conclusive and the crimes for which judgment has become final and conclusive prior to the final and conclusive judgment” are concurrent crimes. As to the punishment of ex post concurrent crimes, the former part of Article 39(1) provides, “a sentence shall be imposed on the crimes in consideration of equity in the case where the crime for which judgment has become final and conclusive is concurrently adjudicated and the crimes for which judgment has become final and conclusive shall be concurrent crimes.” This is because our Criminal Act recognizes ex post concurrent crimes, and the reason for separate provision on punishment is naturally known to the court prior to the final and conclusive judgment, and it shall not be treated favorably solely on the ground that the crime has been committed. The Supreme Court also has to determine the punishment for ex post concurrent crimes by applying Article 39(1) of the Criminal Act by taking into account the equity in cases where each crime has been adjudicated at the same time (see, e.g., Supreme Court Decisions 2009Do946716, Oct. 27, 27.).

However, when applying Article 55(1) of the Criminal Act at the time of a judgment on ex post concurrent crimes, the applicable theory that the reduction of punishment would be subject to the restriction of one half of the term of punishment or the amount of punishment, as seen earlier, would result in a crime for which the lower limit of the statutory penalty is set in the recent reality of our society where there are a lot of crimes for which the lower limit of the statutory penalty is set, the sentence shall not be sentenced to more than a certain lower limit or exempted from the punishment. Accordingly, it may not be avoided that frequent cases where it is impossible to implement the sentencing taking into account the case of concurrent concurrent crimes and equity. This would result in the deprivation of the intent of Article 39(1) of the Criminal

Therefore, in order to interpret the latter part of Article 39(1) of the Criminal Act harmoniously in a way that enables the former part of Article 39(1) of the Criminal Act to take into account both the former part and the latter part of Article 39(1) of the Criminal Act, the latter part of Article 39(1) of the Criminal Act shall be deemed a means or instrument to examine the above medical principle, and the latter part of the Criminal Act shall be interpreted as a non-applicable theory that, with respect to ex post concurrent crimes, a reasonable punishment may be mitigated without restriction so that it can be taken into account at the same time when the relevant crime is adjudicated simultaneously and equity. The Supreme Court has previously held that “the punishment may be mitigated or exempted” (see, e.g., Supreme Court Decisions 2013Do3142, Jun. 13, 2013; 2015Do4107, May 14, 2015).

E. Legal interpretation

In the case of Germany, the punishment of concurrent crimes is to be imposed at the same time in the same way as in Korea. In the case of Germany, by adopting a separate sentence for ex post concurrent crimes, such as Korea, and by prohibiting the punishment for ex post concurrent crimes in comparison with when judgment is rendered, Austria adopted a separate sentence for ex post concurrent crimes, such as Korea, while adopting a separate sentence for ex post concurrent crimes, and by preventing more severe punishment in comparison with when judgment is rendered at the same time, Austria also seeks to promote equity in the case of concurrent crimes. These methods have a little difference in each other, but at least, in the case of ex post concurrent crimes, there is a common point in view of legislation so that the court can render a sentence free prior to equality, without being harming the individual statutory punishment for each crime.

From the perspective of comparative law, it is difficult to adopt the application theory that the minimum of statutory punishment mitigation occurs in punishing ex post concurrent crimes.

F. Interpretation consistent with the purpose of legislation

Article 39(1) of the current Criminal Act was amended by Act No. 7623 on July 29, 2005. Prior to the amendment, Article 39(1) of the former Criminal Act provides, “In the event there are crimes which have not been adjudicated among the concurrent crimes, a sentence shall be imposed on such crimes shall be imposed.” Article 39(2) of the former Criminal Act provides, “In the event there are several rulings under the preceding paragraph, a sentence shall be executed under the preceding Article.” As to Article 39(2) of the former Criminal Act, the Supreme Court held that “The execution shall be made within the maximum term of the statutory punishment prescribed for the most severe crime among the concurrent crimes according to the example of Article 38, within the scope of the aggravated punishment (see Supreme Court Order 67 seconds6, Mar. 6, 1967).”

As a result, the law prior to the amendment no longer adopted the principle of concurrent punishment for ex post facto concurrent crimes. However, in the event that a trial was separated for reasons not attributable to the defendant and punished at this time, there was criticism that the punishment becomes unreasonable than when the limited aggravated punishment adopted by the Korean Criminal Act was applied. Accordingly, the amendment of the law prior to the amendment of the law relating to ex post concurrent crimes was submitted for the removal of such unreasonable punishment, stating that “where there is a crime which has not been adjudicated among concurrent crimes, the punishment shall be imposed, including the punishment imposed by applying Article 38, and an additional punishment shall be imposed on such crime.” However, if the amendment is based on such amendment, it would be more unreasonable to punish the new punishment for ex post facto concurrent crimes than the punishment of the same Article 38(1) of the Criminal Act because it would be more unreasonable to punish the new punishment for ex post facto concurrent crimes than the punishment of the same Article which would become final and conclusive, it would be more unreasonable to punish the new punishment for ex post facto concurrent crimes than the punishment of the same Article 37 of the Criminal Act.

(g) A difference in grounds for other statutory mitigation;

1) As long as the grounds for mitigation for ex post facto concurrent crimes are prescribed by law, it shall be interpreted as falling under “legal mitigation” as stipulated in Article 5(1) of the Criminal Act. Therefore, the method of mitigation shall be interpreted as only in compliance with the method stipulated in Article 55(1) of the Criminal Act. However, unless the Act explicitly provides for the method of mitigation to comply with Article 5(1) of the Criminal Act, the issue of whether mitigation of punishment under the provision of mitigation shall be determined by the interpretation of Article 55(1) of the Criminal Act. Such interpretation should be determined by comprehensively taking into account the constitutional principles, the background leading up to the introduction of the relevant reason for mitigation, the purpose of legislation, language, and system. The Supreme Court also has to interpret the provision of Article 55(1)5 of the former Military Court Act (wholly amended by Act No. 3993, Dec. 4, 1987) that provides for the right to mitigation of punishment, which does not necessarily mean that the applicable provision of mitigation of punishment under the Criminal Act should not necessarily be interpreted in accordance with Article 515 of the Criminal Act.

2) The applicable theory argues that the form that provides for mitigation for ex post concurrent crimes is the same as that provided for the grounds for mitigation of other Acts. However, other statutory mitigations take the form that, immediately subsequent to the provision of the grounds for mitigation, such as excessive self-defense or the crime of suspension, “if there exists any such grounds for mitigation, the punishment may be mitigated or exempted.” However, in the case of ex post concurrent crimes, there is a reason for mitigation that “if there is any such reason for mitigation, the punishment may be mitigated or exempted.” However, in the case of ex post concurrent crimes, there is a reason for mitigation that “if there is any crime which has not been adjudicated among the concurrent crimes, the crime in question and the crime for which judgment have become final and conclusive, in consideration of equity and at the same time, the punishment shall be imposed on the crime,” and then, by providing that “In this case, the punishment may be mitigated or mitigated may be mitigated or remitted,” it completely differs from other statutory mitigations. In other words, in the case of ex post concurrent crimes, the basic principle of punishment for such

3) Furthermore, other statutory mitigation causes have been made by making the provisions on statutory mitigation at the time of the enactment of the Criminal Act and making the said provisions on statutory mitigation, and it can be deemed that legislation was made after fully reviewing the effects, etc. in the case of applying the statutory mitigation provisions under Article 55(1) of the Criminal Act with respect to the said mitigation causes. However, in the case of ex post concurrent crimes, as seen earlier in the process of amending Article 39 of the Criminal Act in 2005, while avoiding critical views on the proposal of the first amendment, “the method of sentencing an additional punishment after determining a single total sentence,” as seen earlier, in order to derive the outcome of ensuring the equity with concurrent concurrent concurrent crimes, which are sentenced to a single total sentence, the said “reduction” is deemed as one of the statutory mitigation causes applicable under Article 55(1) of the Criminal Act, and thus, the legislative amendment process does not lead to the failure of legislation that would result in concurrent punishment with the case of concurrent crimes that may result in concurrent crimes between the nation and the public.

4) Therefore, construing that Article 55(1) of the Criminal Act does not apply to ex post concurrent crimes, unlike other statutory mitigation grounds, cannot be said to hinder uniformity in statutory interpretation.

H. Whether the defendant violated the principle of no punishment without law

There may be criticism that the application theory violates the principle of no punishment without the law or excessively expands the discretion of judges in sentencing in terms of the fact that judges can impose a sentence below the minimum sentence to be mitigated beyond the limit despite the provision of mitigation which sets the statutory penalty and the standard at the time of mitigation.

However, the principle of no punishment without the law is to guarantee the freedom and rights of the people from the arbitrary exercise of the state penal authority. Accordingly, in the current criminal procedure law system that can determine the timing and method of prosecution for the accused who committed several crimes at will, it should be deemed that the punishment does not vary to the maximum extent possible depending on whether the accused is prosecuted as concurrent concurrent crimes or is prosecuted as ex post concurrent crimes.

However, in the case of concurrent concurrent crimes, the punishment is set according to the restrictive aggravated principle, and there is a frequent case where the applicable sentences set for individual crimes constituting such concurrent crimes are more or more determined than the mitigation of punishment pursuant to statutory punishment or Article 55(1) of the Criminal Act. From the perspective of examining the aforementioned arguments as to the violation of the principle of no punishment without the law, it does not constitute a violation of the principle of no punishment without the law or an excessive expansion of the judge’s discretion in sentencing. Thus, it is the same as in the case of concurrent concurrent crimes which constitute such concurrent crimes, solely on the ground that a prosecutor was indicted for ex post concurrent crimes not concurrent crimes but ex post concurrent crimes, the punishment determined as to individual crimes constituting such concurrent crimes is set below the standard for mitigation of punishment under Article 5(1) of the Criminal Act, and thus, it cannot be said that there is a new violation of the principle of no punishment without the law, unlike the case where concurrent concurrent crimes occurred, or that the sentencing of judges should not be expanded ex post facto or ex post facto, in accordance with the purport of the provision of the punishment without the criminal law.

I. Sub-committee

Ultimately, as in the instant case, a crime committed before a judgment sentenced to imprisonment without prison labor or heavier punishment (excluding death penalty, life imprisonment, or imprisonment without prison labor) becomes final and conclusive is a crime for which the minimum statutory penalty is set, and where the punishment determined for such crime is “the same type of punishment, other than death penalty, life imprisonment, or imprisonment without prison labor,” as provided in Article 38(1)2 of the Criminal Act, the interpretation that Article 55(1) of the Criminal Act applies to mitigation of the punishment pursuant to the latter part of Article 39(1) of the Criminal Act by taking the applicable theory is consistent with the Constitution, which violates the Constitution and takes a non-applicable theory, to interpret that Article 5(1) of the Criminal Act does not apply. Furthermore, for the foregoing reason, the non-applicable theory accords with the legislative intent, language, and system, etc. of the introduction of the system.

3. Determination on the grounds for appeal

The lower court determined that: (a) the Defendant, who is ex post concurrent crimes, chosen each of the instant crimes, to be punished by imprisonment for a limited term; (b) took a view that Article 55(1) of the Criminal Act should be applied to mitigation of punishment pursuant to Article 39 of the Criminal Act; and (c) the scope of the applicable punishment, which, by taking account of the following circumstances within the applicable scope of the applicable punishment, reduced the punishment pursuant to Article 55(1) of the Criminal Act, is either imprisonment with prison labor for at least one year and three months, but not more than 12 years and three months, or exemption from punishment; and (d) sentenced to imprisonment

However, as seen earlier, Article 55(1) of the Criminal Act shall not apply to mitigation of punishment for ex post concurrent crimes. As such, the lower court should have determined an equitable and appropriate punishment in consideration of equity with the case of concurrent concurrent crimes without applying Article 55(1) of the Criminal Act.

However, during the period from March 11, 2015 to August 7, 2015, the Defendant sold psychotropic drugs in total at KRW 13,200,000,000. The instant crime was committed on October 8, 2015 by selling at KRW 8g of “ABC” and attempted to sell at KRW 1,00,000,000 and was attempted to sell at KRW 1,320,000,000, and all of the two crimes are subject to the Defendant’s selling or selling “ABCC” in 2015.

As above, each of the crimes of this case is identical to a crime for which judgment has become final and conclusive and the frequency of the crimes or the types of narcotics subject to the crime, while the profits acquired by the crime of this case or those acquired by the crime are far less than 1/10, the volume of the narcotics handled is less than 1/8, and the defendant was sentenced to 4 years of imprisonment. In determining punishment for each of the crimes of this case, the defendant must consider equality with the crime finalized as above. The defendant's separate punishment for the crimes of this case is to be made 35 times from the end of 2015 to the beginning of 2016 by the investigative agency to investigate the crimes of this case and secure evidence, and to sell or prosecute the crimes of this case after having been sentenced only three times as a result of the judgment of the court of first instance, and it is not due to any error by the defendant that there is no possibility of harm to the defendant's health and safety of the crime of this case, as well as due to the motive and risk of harm to the defendant's health, etc.

4. Conclusion

Therefore, since the appeal by the defendant is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is so decided as per Disposition after the pleading as follows.

The summary of the facts constituting an offense and the evidence acknowledged by this court is the same as the entries in each corresponding column of the judgment of the court below, and thus, it is quoted in accordance with Article 369 of the Criminal Procedure Act.

1. Article relevant to the facts constituting an offense and the selection of punishment;

Article 58(1)3, Article 3 subparag. 5, Article 2 subparag. 3 (a) (i) of the Narcotics Control Act, Article 58(3), Article 58(1)3, Article 3 subparag. 5, and Article 2 subparag. 3 (a) (i) of the Narcotics Control Act, Article 58(3), Article 3 subparag. 3, Article 3 subparag. 5, and Article 2 subparag. 3 (a) (i) of the Act on the Control of Narcotics, Etc. (i.e.,

1. Handling concurrent crimes;

Article 37 (latter part)

1. Aggravation for concurrent crimes;

The former part of Articles 37 and 38(1) of the Criminal Act (an aggravated punishment of concurrent crimes with punishment prescribed in the Act on the Control of Narcotics, etc. ( native to the Act on the Control of Narcotics, etc.) due to the purchase and sale of E-U.S. C

1. Mitigation for ex post concurrent crimes;

Article 39(1) of the Criminal Act

1. Discretionary mitigation;

Articles 53 and 55 (1) 3 of the Criminal Act (The following circumstances considered as favorable to the reasons for sentencing)

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

The sentence shall be determined as per the Disposition, taking into account all the conditions of sentencing as examined in the judgment on the grounds of appeal as seen earlier.

Judges Cha Jae-ho (Presiding Judge)