Article 64 of the Criminal Act

The purpose of Article 64 of the Criminal Act is that the prosecutor may request the cancellation of the suspended sentence in the event that the grounds for the suspension of execution are discovered only after the judgment of the suspended sentence becomes final and conclusive, and that the prosecutor may not request the cancellation of the suspended sentence in the event that the judgment of the suspended sentence becomes final and conclusive without filing an appeal in spite of the fact that the defendant is disqualified for the suspended sentence.

Defendant (person who has suspended the execution of punishment)

Prosecutor

Daegu District Court Order 76Ro1 dated January 21, 1976

The reappeal is dismissed.

The prosecutor's reappeals are examined.

According to Article 64 of the Criminal Act, when the reasons for the proviso of Article 62 are discovered after the suspended sentence is sentenced, the cancellation of the suspended sentence shall be requested by a prosecutor. Article 335 of the Criminal Procedure Act provides that the cancellation of the suspended sentence shall be requested by a prosecutor. The reason for the suspension of the suspended sentence under Article 64 of the Criminal Act is the reason for the suspension of the suspended sentence, that is, the reason for the suspension of the suspended sentence under Article 62 of the same Act, that is, when five years have not passed since the completion of the suspended sentence or since the exemption from the execution was made, the above reasons are discovered only after the judgment of the suspended sentence became final and conclusive, and in this case, the prosecutor can request the cancellation of the suspended sentence. This is because the prosecutor can not request the cancellation of the suspended sentence if the defendant knew of the above reasons before the judgment of the suspended sentence becomes final and conclusive. Thus, it is reasonable to deem that the prosecutor can not request the cancellation of the suspended sentence where the judgment becomes final and conclusive after the suspended sentence becomes final and conclusive.

In the case of this case where it is discovered that a prosecutor who has investigated the case of this case, for which the court below had already been sentenced to imprisonment for not less than five years since the execution of the sentence was completed before the suspended sentence was sentenced, the request for cancellation of the suspended sentence should be dismissed as it is without merit after the judgment of the suspended sentence became final and conclusive. Next, in the investigation records of this case, the defendant's fingerprint notification is attached to the above criminal records, and the protocol of examination of the defendant as to the defendant in the preparation of acting for the public prosecutor clearly stated the above criminal records in the protocol of examination of the suspect as to the defendant in the protocol of acting for the public prosecutor clearly stated the above criminal records. If it is true that the court below's facts are legally and legally confirmed, it is just and correct that the court below had already been aware of the criminal records of the defendant in the investigation stage prior to the suspended sentence of this case, and it cannot be concluded that the prosecutor was dismissed, and it cannot be concluded that the defendant was dismissed only at the time when the request for cancellation of the suspended sentence was made. It cannot be justified.

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

Justices Lee Il-hee (Presiding Justice)