Generally, whether to sentence a suspended sentence during the period of suspended execution (negative)

A person, for whom a suspended sentence has not yet passed, may not be sentenced to a suspended sentence again, unless there exist special cases where it is deemed that if he/she had been simultaneously sentenced to a suspended sentence in the same procedure because he/she committed several concurrent crimes under Article 37 of the Criminal Act, and that he/she would have been sentenced to a suspended sentence at the same time.

Article 62(1) of the Criminal Act

Supreme Court Decision 87Do2365 Decided September 12, 1989 (electric power resource agreement)

Defendant

Prosecutor

Chuncheon District Court Decision 87No668 delivered on March 10, 1988

The judgment of the court below shall be reversed and the case shall be remanded to Chuncheon District Court Panel Division.

As to the Grounds of Appeal:

Unless there are special cases where a person who was sentenced to a suspended sentence and for whom the suspended sentence has not yet elapsed, committed a concurrent crime under Article 37 of the Criminal Act, and at the same time, would have been sentenced to a suspended sentence at the same time in the same procedure, it cannot be sentenced again to a suspended sentence (see, e.g., Supreme Court en banc Decision 87Do2365, Sept. 12, 1989).

However, on October 27, 1981, the court below acknowledged the fact that the defendant was sentenced to a suspended sentence for one year of imprisonment with prison labor or more at the Gangnam Branch of the Chuncheon District Court on March 10, 1987, which became final and conclusive by a judgment of dismissal of appeal on March 10, 1987, but on the premise that the meaning of "the defendant was sentenced to a sentence of imprisonment without prison labor or more" under the proviso of Article 62 (1) of the Criminal Act means only the case where the defendant was sentenced to a sentence of imprisonment without prison labor or more, and does not refer to the case where the incidental disposition of the suspended sentence is taken. On March 10, 1988, the court below sentenced the suspended sentence again to the defendant on this case, which is not a special case as seen above, and there is an error

Therefore, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Sang-won (Presiding Justice)