[1] Whether the suspension of execution is invalidated or revoked after a sentence of suspension of execution is imposed on "the case where a person is sentenced to an actual sentence" as provided by Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes (negative)

[2] In a case where the defendant was sentenced to one year of suspended sentence for a violation of the Act on the Aggravated Punishment, etc. of Specific Crimes, and was sentenced to two years of imprisonment for the same crime during the grace period, and the judgment became final and conclusive, and the execution of the sentence was terminated in full due to the invalidation of the suspended sentence, and was prosecuted again for violation of the same Act by habitual larceny within three years thereafter, the case holding that the judgment below which applied Article 5-4 (6) of the same Act to the defendant

[1] Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) provides that “If a person was sentenced two or more times to a crime under paragraph (1) or (2) and again commits a crime under paragraph (1) or (2) within three years after the execution of the sentence is terminated or exempted, the punishment shall be aggravated by up to twice the short term of the punishment prescribed for the crime.” In light of the language and text of the above provision, it cannot be deemed that the case where the suspension of execution becomes invalidated or revoked after the suspension of the execution of the sentence was sentenced, is included in “where the person was sentenced to an actual sentence” under Article 5-4(6)

[2] In a case where the Defendant was sentenced to a suspended sentence of one year for a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”), and was sentenced to two years for the same crime during the grace period and sentenced to a final judgment, and the sentence of the suspended sentence became invalidated and the execution of the sentence was completed in entirety, and was charged for violation of the Aggravated Punishment Act by habitual larceny again within three years thereafter, the case holding that the judgment of the suspended sentence is erroneous in the misapprehension of legal principles in the judgment of the court below which applied Article 5-4(6) of the Aggravated Punishment, etc. of Specific Crimes on the above charges, on the ground that

[1] Article 5-4 (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes / [2] Article 12 (1) of the Constitution, Article 1 (1), Articles 329, 330, 331 (1), and 342 of the Criminal Act, Article 5-4 (1) and (6) of the Act on the Aggravated Punishment, etc. of Specific Crimes

[1] Supreme Court Decision 83Do3131, 83Do518 decided Feb. 28, 1984 (Gong1984, 650)

Defendant

Defendant

Attorney Lee Dong-dong

Daejeon High Court (Cheongju) Decision 2010No207 decided February 10, 2011

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

We examine the grounds of appeal.

The interpretation of penal provisions must be strict, and the interpretation of the meaning of the express provision to the disadvantage of the defendant is not permitted because it is against the principle of no punishment without the law (see Supreme Court Decision 2002Do4758 delivered on November 24, 2005, etc.).

Article 5-4(6) of the Act on the Aggravated Punishment, etc. of Specific Crimes (hereinafter “Special Crimes Act”) provides that “If a person was sentenced two or more times to imprisonment for a crime under paragraph (1) or (2) and again commits a crime under paragraph (1) or (2) within three years after the execution of the sentence is completed or exempted, the punishment shall be aggravated by up to twice the short term of the punishment prescribed for the crime.” In light of the language and text of the above provision, where the suspension of execution becomes invalidated or revoked after the suspension of the execution of the sentence was sentenced, it cannot be deemed that the case is included in the case where the sentence of actual punishment was sentenced” under Article 5

Nevertheless, the lower court, on the grounds the grounds indicated in its reasoning, sentenced the Defendant to a suspended sentence of one year for a crime of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes on July 14, 2006 prior to the instant crime, and sentenced the Defendant to a suspended sentence of two years for the same crime on June 19, 2007 and the judgment became final and conclusive and conclusive, and thus the said suspended sentence became invalidated, the said suspended sentence also constitutes a case where the Defendant was sentenced to a suspended sentence of the above punishment. Accordingly, the lower court determined the Defendant by applying Article 5-4(6) of the Aggravated Punishment Act to the instant facts charged. In so doing, it erred by misapprehending the legal doctrine on the interpretation of the “actual sentence” under Article 5-4(6) of the Aggravated Punishment, etc.

The ground of appeal pointing this out is with merit.

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 Yang Chang-soo (Presiding Justice)