Aggravation of the suspended sentence judgment in a new case to be tried during the suspended sentence (negative)

As the proviso of Article 62 (1) of the Criminal Act does not refer only to a sentence of imprisonment without prison labor or a heavier punishment, the criminal act of a new case to be judged in the period of suspended sentence cannot be sentenced again in a new case after considering that the criminal act of a new case is before or after the suspended sentence is the criminal act of a new case.

[Destruction of the Supreme Court en banc Decision 87Do2365 Decided December 89, 200

Article 62(1) of the Criminal Act

Supreme Court Decision 69Do669 Decided June 10, 1969

Defendant

Prosecutor

Suwon District Court Decision 83No189 delivered on May 6, 1983

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The prosecutor's grounds of appeal are examined.

From the proviso of Article 62 (1) of the Criminal Code, the term "the sentence of imprisonment without prison labor or heavier" is not referred to only as "the sentence is to be imposed", and therefore, in a case where a criminal act of a new case to be tried was or was committed before or after a suspended sentence was sentenced first, it cannot be sentenced again to a suspended sentence. (See Supreme Court Decision 69Do669 delivered on June 10, 1969).

However, the court below acknowledged the fact that the defendant was sentenced to a suspended sentence for two years or more due to the breach of trust in the Suwon District Court Incheon Branch of October 27, 1981, and provided that the defendant was sentenced to a sentence of imprisonment without prison labor or more under the proviso to the above provisions of the Criminal Act even though it acknowledged the fact that the defendant was sentenced to a suspended sentence for two years or more due to the breach of trust, and on the premise that there is no incidental disposition of the suspended sentence, it does not refer to the case where there is an incidental disposition of the suspended sentence, the court below, which was the suspended sentence, sentenced the defendant again to a suspended sentence for the defendant for the violation of the proviso to the above provisions of the Criminal Act

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 Shin Jong-young (Presiding Justice)