[1] Whether a suspended sentence can be imposed only for one of the imprisonment, in a case where two sentence of imprisonment is imposed by a single judgment (affirmative)

[2] Whether the period of probation can be selected at will from the time after the final judgment that sentenced the probation period becomes final and conclusive (negative)

[3] The case holding that it is unlawful to sentence the suspended sentence only for one imprisonment with prison labor when two concurrent crimes under the latter part of Article 37 of the Criminal Code are sentenced to one imprisonment with prison labor, and that the date of the suspended sentence is limited to the expiration date of another imprisonment with prison labor

[1] Since the latter part of Article 37 of the Criminal Code shall be sentenced separately for a crime of concurrent crimes under Article 39(1) of the Criminal Code, in cases where two sentences are sentenced separately for a single judgment, since two sentences are different for a crime of concurrent crimes under Article 39(1) of the Criminal Code, if the requirements for a suspended sentence under Article 62(1) of the Criminal Code are satisfied, a suspended sentence may be sentenced for each one of the two sentences, and in cases where a suspended sentence is sentenced for one of the two types of sentences, and in cases where a suspended sentence is imposed for the other types of imprisonment, a suspended sentence shall be allowed under the Criminal Code,

[2] Although our criminal law does not explicitly provide for the period of probation, in light of the purport that Article 459 of the Criminal Procedure Act provides that "a judgment shall be executed after this Act became final and conclusive unless otherwise provided in this Act, or the nature of the system of probation, etc., the period of probation shall be the date of the final and conclusive judgment sentenced to probation, and the court shall not choose at will the time after the final and conclusive judgment.

[3] The case holding that it is unlawful to sentence the suspension of execution only for one imprisonment with prison labor when sentenced to two concurrent crimes under the latter part of Article 37 of the Criminal Code, and to decide the time of the suspension of execution of another imprisonment with prison labor

[1] Articles 37, 39(1), and 62(1) of the Criminal Act / [2] Article 459 of the Criminal Procedure Act / [3] Articles 37, 39(1), and 62(1) of the Criminal Act, Article 459 of the Criminal Procedure Act

[1] Supreme Court Decision 2001Do3579 decided Oct. 12, 2001 (Gong2001Ha, 2510)

Defendant

Prosecutor

Attorney Examination ceremony (National Assembly)

Daejeon High Court Decision 2000No337 delivered on September 22, 2000

The part concerning the crime No. 1-A and No. 2-B of the judgment of the court below is reversed, and this part of the case is remanded to the Daejeon High Court.

Article 39(1) of the Criminal Act on a crime in relation to concurrent crimes under the latter part of Article 37 of the Criminal Act is to be sentenced separately in accordance with Article 39(1) of the Criminal Act. Since two sentences are different in cases where two sentences are sentenced separately in one judgment, if the requirements for suspension of execution under Article 62(1) of the Criminal Act are met, the suspension of execution may be sentenced for each sentence. In addition, in cases where a sentence for one of the two types of imprisonment is sentenced and a sentence for suspension of execution for other types of imprisonment is imposed, it shall be permitted unless there is any express provision prohibiting such measures under the Criminal Act (see Supreme Court Decision 2001Do3579, Oct. 12, 2001). However, in light of the purport that Article 459 of the Criminal Procedure Act does not expressly stipulate the time of suspension of execution (see Supreme Court Decision 201Do3579, Oct. 12, 2001).

The court below found the defendant guilty of all of the crimes as stated in its holding, and held that there is a summary order of KRW 500,00,00 which is a fine established on April 10, 199. Thus, Article 1-A of the Criminal Act, Article 2-A of the judgment, Article 2-2 of the judgment, Article 1-2 of the judgment, and Article 2-3 of the judgment shall be sentenced to imprisonment for two years and six months, and Article 3-2 of the judgment, and Article 2-3 of the judgment shall be sentenced to imprisonment for three years and six months, and Article 1-2-C of the judgment after the judgment of this case becomes final and conclusive, Article 2-1 of the judgment and Article 2-2 of the judgment shall be suspended execution of the above punishment for crimes of KRW 2-A, 2-B of the judgment of the court below, and Article 37-2 of the judgment of the court below shall be sentenced to imprisonment for the remaining crimes, and Article 1-2 of the judgment of the court below shall be sentenced to imprisonment for three years after the judgment.

Therefore, the part concerning the crime No. 1-A and No. 2-B of the judgment of the court below is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jae- Jae (Presiding Justice)